Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originator. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof and not just a division of the Originator. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shall: (A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originator; (B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originator, allocate the compensation of such employee, consultant or agent between Seller and the Originator on a basis that reflects the services rendered to Seller and the Originator; (C) clearly identify its offices (by signage or otherwise) as its offices, if any, and, if any such office is located in the offices of the Originator, Seller shall lease such office at a fair market rent; (D) if applicable, have separate stationery, invoices and checks in its own name; (E) conduct all transactions with the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, for items shared between Seller and the Originator on the basis of actual use to the extent practicable, if any, and, to the extent such allocation is not practicable, on a basis reasonably related to actual use; (F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director; (G) observe all organizational formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director); (H) maintain Seller’s books and records separate from those of the Originator and otherwise readily identifiable as its own assets rather than assets of the Originator; (I) prepare its financial statements, if any, separately from those of the Originator and ensure that any consolidated financial statements of the Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes stating to the effect that Seller is a separate corporate entity and that its assets will be available to satisfy the claims of the creditors of Seller and of no other Person; (J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals; (K) pay all of Seller’s operating expenses, if any, from the Seller’s own assets (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i)); (L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement; (M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement; (N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent; (O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary; (P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and (Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 6 contracts
Samples: Receivables Purchase Agreement (McKesson Corp), Receivables Purchase Agreement (McKesson Corp), Receivables Purchase Agreement (McKesson Corp)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatoreach Cardinal Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementJune 29, 2000, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Cardinal Entity and any Affiliates thereof and not just a division of the Originatorany Cardinal Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(Ai) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Cardinal Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(Bii) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Cardinal Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Cardinal Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Cardinal Entity or such Affiliate, as applicable;
(Ciii) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Cardinal Entity, Seller shall will lease such office at a fair market rent;
(Div) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(Ev) conduct all transactions with the Originator each Cardinal Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Cardinal Entity on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(Fvi) at all times have a Board of Directors Managers consisting of at least three members, at least one member of which is an Independent DirectorManager;
(Gvii) observe all organizational corporate formalities as a distinct entity, and ensure that (I) all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B1) the dissolution or liquidation of Seller or (C2) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Managers (including the Independent Director)Manager) and (II) all limited liability company actions relating to the selection, maintenance or replacement of the Independent Manager are duly authorized in compliance with Seller’s articles of organization and operating agreement;
(Hviii) maintain Seller’s books and records separate from those of the Originator each Cardinal Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Cardinal Entity and any Affiliate thereof;
(Iix) prepare its financial statements, if any, statements separately from those of the Originator each Cardinal Entity and ensure insure that any consolidated financial statements of the Originator any Cardinal Entity or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(Jx) except to the extent funds of Seller and Xxxxxxx and funds of Seller and Cardinal may be commingled in connection with the performance by Xxxxxxx and Cardinal of their respective servicing obligations hereunder as herein specifically otherwise providedServicer and Permitted Sub-Servicer, respectively, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Cardinal Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(Kxi) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Cardinal Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(Lxii) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement (it being understood that Seller may make the Demand Loans to Cardinal pursuant to and in accordance with the terms of the Cash Management Agreement); and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Xxxxxxx thereunder for the purchase of Receivables from the Originator Xxxxxxx under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(Mxiii) maintain its organizational documents limited liability company charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents articles of organization and operating agreement in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(Nxiv) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, each Xxxxxxx RPA (as Xxxxxxx’x assignee), the Cash Management Agreement and the Performance Guaranty, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, each Xxxxxxx RPA, the Cash Management Agreement or the Performance Guaranty, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement thereunder or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Financial Institutions;
(Oxv) maintain its corporate limited liability company separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(Pxvi) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or membership interest or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Qxvii) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Xxxxxx & Xxxxxxxx LLP Xxxxxxx, as counsel for Seller Seller, in connection with the closing or initial Incremental Purchase under the Original Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Cardinal Health Inc), Receivables Purchase Agreement (Cardinal Health Inc)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatoreach Xxxxxxxxx Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementApril 27, 2007, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Xxxxxxxxx Entity and any Affiliates thereof and not just a division of the Originatorany Xxxxxxxxx Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Xxxxxxxxx Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Xxxxxxxxx Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Xxxxxxxxx Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Xxxxxxxxx Entity or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Xxxxxxxxx Entity or an Affiliate thereof, Seller shall will lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator each Xxxxxxxxx Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) and their respective Affiliates strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Xxxxxxxxx Entity or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Governors consisting of at least three members, at least one member of which is an Independent DirectorGovernor;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A1) the selection, maintenance or replacement of the Independent DirectorGovernor, (B2) the dissolution or liquidation of Seller or (C3) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Governors (including the Independent DirectorGovernor);
(H) maintain Seller’s books and records separate from those of the Originator each Xxxxxxxxx Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Xxxxxxxxx Entity and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Xxxxxxxxx Entity and ensure insure that any consolidated financial statements of the Originator any Xxxxxxxxx Entity or any Affiliate thereof that include Seller and Seller, including any that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Xxxxxxxxx Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or Servicer in the Collateral performance of its duties hereunder) is the account party and from which Seller alone (or Servicer in the performance of its duties hereunder or Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Xxxxxxxxx Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness Indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Originators thereunder for the purchase of Receivables from the Originator Originators under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents articles of organization and bylaws in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents articles of organization or bylaws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its articles of organization and bylaws, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to Agent of the replacement or appointment of any governor that is to serve as an Independent Governor for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Governor” and Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Governor”;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, the Performance Undertaking and the other Transaction Documents, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, the Performance Undertaking or any other Transaction Document, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement Agreement, the Performance Undertaking, or any other Transaction Document, or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock membership units or payment of any subordinated indebtedness Indebtedness or other liabilities which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxxx and Xxxxxx, Professional Association, as counsel for Seller and the Originator Seller, dated April 27, 2007 (as such opinion may be brought down or replaced from time to time), relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 2 contracts
Samples: Contract Purchase Agreement (Patterson Companies, Inc.), Contract Purchase Agreement (Patterson Companies, Inc.)
Purchasers’ Reliance. The Seller acknowledges that the -------------------- Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Seller’s 's identity as a separate legal entity that is separate from the Originator. Originator and GP, Inc. Therefore, from and after the date of execution and delivery of this Agreement, the Seller shall take all reasonable steps, steps including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, request to maintain the Seller’s 's identity as a separate legal entity and to make it manifest to third parties that the Seller is an entity with assets and liabilities distinct from those of the Originator and GP, Inc. and any Affiliates thereof and not just a division of the Originator. Originator or GP, Inc. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller shall:
(Ai) conduct its own business in its own name and require that all full-time employees of Seller, if any, the Seller identify themselves as such and not as employees of the OriginatorOriginator or GP, Inc. (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Seller's employees);
(Bii) if applicable, compensate all employees, consultants and agents directly, from the Seller’s 's bank accounts, for services provided to the Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Seller is also an employee, consultant or agent of the OriginatorOriginator or GP, Inc., allocate the compensation of such employee, consultant or agent between the Seller and the Originator (or GP, Inc. as applicable) on a basis that which reflects the services rendered to the Seller and the OriginatorOriginator (or GP, Inc. as applicable);
(Ciii) clearly identify its offices (by signage or otherwise) as its offices, if any, and, if any such office is located in the offices of the Originator, Seller shall lease such office at a fair market rent;
(Div) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(Ev) conduct all transactions with the Originator and the Servicer (includingGP, without limitation, any delegation of its obligations hereunder as Servicer) Inc. strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between the Seller and the Originator or GP, Inc. on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(Fvi) at all times have a Board of Directors consisting of at least three members, at least one member of which is the Board of Directors of GP, Inc. (an "Independent Director") be a Person who is not (A) a -------------------- director, officer or employee of the Originator, the Seller or any affiliate thereof, (B) a person related to any officer or director of the Originator or the Seller, (C) a holder (directly or indirectly) of more than 5% of any voting securities (or other equity interests) of the Originator or the Seller, or (D) a person related to a holder (directly or indirectly) of more than 5% of any voting securities (or other equity interests) of the Originator or the Seller;
(Gvii) observe all organizational partnership formalities as a distinct entity, and ensure that all corporate or limited liability company partnership actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of GP, Inc. as its Board of Directors (including the Independent Director)sole general partner;
(Hviii) maintain the Seller’s 's books and records separate from those of the Originator and GP, Inc. and otherwise readily identifiable as its own assets rather than assets of the OriginatorOriginator or GP, Inc.;
(Iix) prepare its financial statements, if any, statements separately from those of the Originator and ensure GP, Inc. and insure that any consolidated financial statements of the Originator or any Affiliate thereof that include the Seller and have detailed notes clearly stating that are filed with the Securities and Exchange Commission or any other governmental agency have notes stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other Personits own creditors;
(Jx) except as herein specifically otherwise provided, maintain the not commingle funds or other assets of the Seller separate from, and not commingled with, with those of the Originator or GP, Inc. and only not maintain bank accounts or other depository accounts to which the Seller alone Originator or GP Inc. is the an account party, into which the Seller alone Originator or GP, Inc. makes deposits and or from which the Seller alone (Originator or the Collateral Agent or Managing Agents hereunder) GP, Inc. has the power to make withdrawals;
(Kxi) pay all of Seller’s operating expenses, if any, from the Seller’s own assets (except for certain payments by not permit the Originator or other Persons GP, Inc. to pay any of the Seller's operating expenses (except pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i));
subparagraphs (Lii) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4v) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintainedabove); and
(Qxii) take not permit the Seller to be named as an insured on the insurance policy covering the property of the Originator or GP, Inc. or enter into an agreement with the holder of such other actions as are necessary on its part to ensure that the facts and assumptions set forth policy whereby in the opinion issued on event of a loss in connection with such property, proceeds are paid to the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all timesSeller.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Bon Ton Stores Inc), Receivables Purchase Agreement (Bon Ton Stores Inc)
Purchasers’ Reliance. The Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Seller’s identity as a legal entity that is separate from each of the OriginatorOriginators and Yellow Roadway Corporation. Therefore, from and after the date of execution and delivery of this Agreement, the Seller shall take all reasonable steps, steps including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, request to maintain the Seller’s identity as a separate legal entity and to make it manifest to third parties that the Seller is an entity with assets and liabilities distinct from those of the Originator Originators and any Affiliates thereof and not just a division of one of the OriginatorOriginators. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller shall:
(Ai) conduct its own business in its own name and require that all full-time employees of the Seller, if any, identify themselves as such and not as employees of an Originator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the OriginatorSeller’s employees);
(Bii) if applicable, compensate all employees, consultants and agents directly, from the Seller’s bank accounts, for services provided to the Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Seller is also an employee, consultant or agent of the an Originator, allocate the compensation of such employee, consultant or agent between the Seller and the such Originator on a basis that which reflects the services rendered to the Seller and the such Originator;
(Ciii) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the an Originator, the Seller shall lease such office at a fair market rent;
(Div) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(Ev) conduct all transactions with the each Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between the Seller and the such Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(Fvi) at all times have a at least two members of its Board of Directors consisting (each, an “Independent Director”) who are not at such time, and have not have been at any time during the preceding five years (A) a director, officer, employee or affiliate of Yellow Roadway Corporation or any of its subsidiaries or affiliates, or (B) the beneficial owner at least three members, the time of such individual’s appointment as an Independent Director or at least one member of which is any time thereafter while serving as an Independent Director, of five percent (5%) of the outstanding common shares of Yellow Roadway Corporation having general voting rights; provided, however, that a director who otherwise meets the description of Independent Director as set forth herein shall not be disqualified from serving as an Independent Director of the Seller if he or she is also a director of another corporation that is an Affiliate of Yellow Roadway Corporation with a certificate of incorporation substantially similar to the certificate of incorporation of the Seller;
(Gvii) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent DirectorDirectors, (B) the dissolution or liquidation of the Seller or (C) the initiation of, of participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving the Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent DirectorDirectors);
(Hviii) maintain the Seller’s books and records separate from those of the Originator Originators and otherwise readily identifiable as its own assets rather than assets of the an Originator;
(Iix) prepare its financial statements, if any, statements separately from those of the Originator Originators and ensure insure that any consolidated financial statements of the Originator Originators or any Affiliate thereof that include the Seller and that which are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to that the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other Personthe Seller;
(Jx) except as herein specifically otherwise provided, maintain the not commingle funds or other assets of the Seller separate from, and not commingled with, with those of the Originator Originators and only not maintain bank accounts or other depository accounts to which the Seller alone any Originator is the an account party, into which the Seller alone any Originator makes deposits and or from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) any Originator has the power to make withdrawals;
(Kxi) not permit any Originator to pay all any of the Seller’s operating expenses, if any, from the Seller’s own assets expenses (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i5.1(k));
(Lxii) operate its business and activities such that: it does not engage in any business or activity permit the Seller to be named as an insured on the insurance policy covering the property of any kind, Originator or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than an agreement with the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result holder of the endorsement of negotiable instruments for deposit or collection or similar transactions such policy whereby in the ordinary course event of businessa loss in connection with such property, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment proceeds are paid to the Originator for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintainedSeller; and
(Qxiii) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Fulbright & Xxxxxxxx LLP L.L.P., as counsel for Seller the Seller, in connection with the closing or initial purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Yellow Roadway Corp), Receivables Purchase Agreement (Yellow Roadway Corp)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatoreach Xxxxxxxxx Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementClosing Date, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Purchaser Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Xxxxxxxxx Entity and any Affiliates thereof and not just a division of the Originatorany Xxxxxxxxx Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shall:will: 737919142 18589498
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Xxxxxxxxx Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Xxxxxxxxx Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Xxxxxxxxx Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Xxxxxxxxx Entity or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Xxxxxxxxx Entity or an Affiliate thereof, Seller shall will lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator each Xxxxxxxxx Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) and their respective Affiliates strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Xxxxxxxxx Entity or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Governors consisting of at least three members, at least one member of which is an Independent DirectorGovernor;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A1) the selection, maintenance or replacement of the Independent DirectorGovernor, (B2) the dissolution or liquidation of Seller or (C3) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Governors (including the Independent DirectorGovernor);
(H) maintain Seller’s books and records separate from those of the Originator each Xxxxxxxxx Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Xxxxxxxxx Entity and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Xxxxxxxxx Entity and ensure insure that any consolidated financial statements of the Originator any Xxxxxxxxx Entity or any Affiliate thereof that include Seller and Seller, including any that are 737919142 18589498 filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Xxxxxxxxx Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or Servicer in the Collateral performance of its duties hereunder) is the account party and from which Seller alone (or Servicer in the performance of its duties hereunder or Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Xxxxxxxxx Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness Indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Originators thereunder for the purchase of Receivables from the Originator Originators under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents articles of organization and bylaws in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents articles of organization or bylaws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its articles of organization and bylaws, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to Agent of the replacement or appointment of any governor that is to serve as an Independent Governor for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Governor” and Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Governor”;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, the Performance Undertaking and the 737919142 18589498 other Transaction Documents, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, the Performance Undertaking or any other Transaction Document, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement Agreement, the Performance Undertaking, or any other Transaction Document, or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock membership units or payment of any subordinated indebtedness Indebtedness or other liabilities which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion opinion(s) issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxxx and Xxxxxx, P.A., as counsel for Seller and Seller, in connection with the Originator Transaction Documents (as such opinion(s) may be brought down or replaced from time to time), relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Patterson Companies, Inc.), Receivables Purchase Agreement (Patterson Companies, Inc.)
Purchasers’ Reliance. Each Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon such Seller’s identity as a legal entity that is separate from the OriginatorOriginators. Therefore, from and after June 30, 2000 (or, May 15, 2002, in the date case of execution and delivery of this AgreementDairy Group II), each Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain such Seller’s identity as a separate legal entity and to make it manifest to third parties that such Seller is an entity with assets and liabilities distinct from those of the Originator Originators and any Affiliates thereof and not just a division of the Originatoran Originator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, each Seller shallwill:
(A) conduct its own business in its own name and require that all full-time fulltime employees of such Seller, if any, identify themselves as such and not as employees of the Originatorany Originator or any Affiliate thereof (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as such Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from such Seller’s bank accountsown funds, for services provided to such Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of such Seller is also an employee, consultant or agent of the Originatorany Originator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between such Seller and the Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to such Seller and the Originatorsuch Originator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Originator or any Affiliate thereof, Seller shall lease such allocate fairly any overhead for shared office at a fair market rentspace;
(D) if applicablehave a separate telephone number or extension, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator Originators and the Servicer Servicers (including, without limitation, any delegation of its obligations hereunder as ServicerServicers) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between such Seller and the each Originator (or any Affiliate thereof) on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have as its general partner a Board of Directors consisting of at least three members, limited liability company having at least one member of which is an Independent DirectorManager;
(G) observe all organizational corporate and/or limited partnership formalities as a distinct entity, and ensure that all corporate or and/or limited liability company partnership actions relating to (A) the selection, maintenance or replacement of the Independent Directorgeneral partner, (B) the dissolution or liquidation of such Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director)Manager of the general partner;
(H) maintain such Seller’s books and records separate from those of the each Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorsuch Originator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the each Originator and ensure insure that any consolidated financial statements of the such Originator or any Affiliate thereof that include such Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that such Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other Personsuch Seller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of such Seller separate from, and not commingled with, those of the any Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the such Seller alone is the account party, into which the Seller alone makes deposits party and from which the such Seller alone (or the Collateral Agent or Managing Agents hereunder) has the sole power to make withdrawals;
(K) pay all of such Seller’s operating expenses, if any, expenses from the such Seller’s own assets (except for certain payments by the Originator Originators or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale AgreementAgreement to which it is a party (it being understood that Dairy Group and Dairy Group II may enter into the transactions contemplated by the respective Demand Notes); and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale AgreementAgreement to which it is a party, to make payment to the each Originator thereunder for the purchase of Receivables from the any Originator under the such Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents limited partnership agreement in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents limited partnership agreement in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its limited partnership agreement, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to the Agent of the replacement or appointment of any director that is to serve as an Independent Manager for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that the applicable Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Manager” and the Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Manager;”
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreement to which it is a party (and, in the case of Dairy Group and Dairy Group II, the respective Demand Notes), such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the such Receivables Sale AgreementAgreement or the Demand Notes, or give any consent, waiver, directive or approval thereunder under such Receivables Sale Agreement or the Demand Notes, or waive any default, action, omission or breach under the such Receivables Sale Agreement or under the Demand Notes, or otherwise grant any indulgence thereunderunder such Receivables Sale Agreement or the Demand Notes, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate limited partnership separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement to which it is a party) and refrain from making any dividend, distribution, redemption of capital stock or partnership interest or payment of any subordinated indebtedness which that would cause the such Required Capital Amount to cease to be so maintained; and;
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxx Lord LLP, as counsel for Seller such Seller, in connection with Amendment No. 12 to this Agreement, dated as of September 28, 2011, and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Dean Foods Co), Receivables Purchase Agreement (Dean Foods Co)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originator. Therefore, from and after during the date of execution and delivery term of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof and not just a division of the OriginatorOriginator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the OriginatorOriginator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the OriginatorOriginator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the OriginatorOriginator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originator, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name, and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator and Originator, the Servicer and any Affiliate thereof (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the OriginatorOriginator or any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator thereunder for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its corporate charter, at all times that this Agreement is in effect, provides for not less than 10 days’ prior written notice to the Agent of the replacement or appointment of any director that is to serve as an Independent Director for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Director” and the Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Director;”
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Cxxxxxxxx & Xxxxxxxx LLP Bxxxxxx LLP, as counsel for Seller Seller, in connection with this Agreement and the Originator relating to true sale and substantive consolidation issuesissues with respect to Originator and Seller, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Avnet Inc), Receivables Purchase Agreement (Avnet Inc)
Purchasers’ Reliance. Each Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon such Seller’s identity as a legal entity that is separate from the OriginatorOriginators. Therefore, from and after June 30, 2000 (or, May 15, 2002, in the date case of execution and delivery of this AgreementDairy Group II), each Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain such Seller’s identity as a separate legal entity and to make it manifest to third parties that such Seller is an entity with assets and liabilities distinct from those of the Originator Originators and any Affiliates thereof and not just a division of the Originatoran Originator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, each Seller shallwill:
(A) conduct its own business in its own name and require that all full-time fulltime employees of such Seller, if any, identify themselves as such and not as employees of the Originatorany Originator or any Affiliate thereof (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as such Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from such Seller’s bank accountsown funds, for services provided to such Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of such Seller is also an employee, consultant or agent of the Originatorany Originator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between such Seller and the Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to such Seller and the Originatorsuch Originator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Originator or any Affiliate thereof, Seller shall lease such allocate fairly any overhead for shared office at a fair market rentspace;
(D) if applicablehave a separate telephone number or extension, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator Originators and the Servicer Servicers (including, without limitation, any delegation of its obligations hereunder as ServicerServicers) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between such Seller and the each Originator (or any Affiliate thereof) on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have as its general partner a Board of Directors consisting of at least three members, limited liability company having at least one member of which is an Independent DirectorManager;
(G) observe all organizational corporate and/or limited partnership formalities as a distinct entity, and ensure that all corporate or and/or limited liability company partnership actions relating to (A) the selection, maintenance or replacement of the Independent Directorgeneral partner, (B) the dissolution or liquidation of such Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director)Manager of the general partner;
(H) maintain such Seller’s books and records separate from those of the each Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorsuch Originator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the each Originator and ensure insure that any consolidated financial statements of the such Originator or any Affiliate thereof that include such Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that such Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other Personsuch Seller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of such Seller separate from, and not commingled with, those of the any Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the such Seller alone is the account party, into which the Seller alone makes deposits party and from which the such Seller alone (or the Collateral Agent or Managing Agents hereunder) has the sole power to make withdrawals;
(K) pay all of such Seller’s operating expenses, if any, expenses from the such Seller’s own assets (except for certain payments by the Originator Originators or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale AgreementAgreement to which it is a party (it being understood that Dairy Group and Dairy Group II may enter into the transactions contemplated by the respective Demand Notes); and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale AgreementAgreement to which it is a party, to make payment to the each Originator thereunder for the purchase of Receivables from the any Originator under the such Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents limited partnership agreement in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents limited partnership agreement in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its limited partnership agreement, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to the Agent of the replacement or appointment of any director that is to serve as an Independent Manager for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that the applicable Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Manager” and the Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Manager;”
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreement to which it is a party (and, in the case of Dairy Group and Dairy Group II, the respective Demand Notes), such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the such Receivables Sale AgreementAgreement or the Demand Notes, or give any consent, waiver, directive or approval thereunder under such Receivables Sale Agreement or the Demand Notes, or waive any default, action, omission or breach under the such Receivables Sale Agreement or under the Demand Notes, or otherwise grant any indulgence thereunderunder such Receivables Sale Agreement or the Demand Notes, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate limited partnership separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement to which it is a party) and refrain from making any dividend, distribution, redemption of capital stock or partnership interest or payment of any subordinated indebtedness which that would cause the such Required Capital Amount to cease to be so maintained; and;
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, as counsel for Seller such Seller, in connection with this Agreement, dated as of the date hereof, and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Dean Foods Co), Receivables Purchase Agreement (Dean Foods Co)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatoreach Xxxxxxxxx Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementClosing Date, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Purchaser Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Xxxxxxxxx Entity and any Affiliates thereof and not just a division of the Originatorany Xxxxxxxxx Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shall:will: 737938467 18589498
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Xxxxxxxxx Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Xxxxxxxxx Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Xxxxxxxxx Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Xxxxxxxxx Entity or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Xxxxxxxxx Entity or an Affiliate thereof, Seller shall will lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator each Xxxxxxxxx Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) and their respective Affiliates strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Xxxxxxxxx Entity or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Governors consisting of at least three members, at least one member of which is an Independent DirectorGovernor;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A1) the selection, maintenance or replacement of the Independent DirectorGovernor, (B2) the dissolution or liquidation of Seller or (C3) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Governors (including the Independent DirectorGovernor);
(H) maintain Seller’s books and records separate from those of the Originator each Xxxxxxxxx Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Xxxxxxxxx Entity and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Xxxxxxxxx Entity and ensure insure that any consolidated financial statements of the Originator any Xxxxxxxxx Entity or any Affiliate thereof that include Seller and Seller, including any that are 737938467 18589498 filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Xxxxxxxxx Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or Servicer in the Collateral performance of its duties hereunder) is the account party and from which Seller alone (or Servicer in the performance of its duties hereunder or Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Xxxxxxxxx Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness Indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Originators thereunder for the purchase of Receivables from the Originator Originators under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents articles of organization and bylaws in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents articles of organization or bylaws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its articles of organization and bylaws, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to Agent of the replacement or appointment of any governor that is to serve as an Independent Governor for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Governor” and Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Governor”;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, the Performance Undertaking and the 737938467 18589498 other Transaction Documents, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, the Performance Undertaking or any other Transaction Document, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement Agreement, the Performance Undertaking, or any other Transaction Document, or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock membership units or payment of any subordinated indebtedness Indebtedness or other liabilities which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion opinion(s) issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxxx and Xxxxxx, P.A., as counsel for Seller and Seller, in connection with the Originator Transaction Documents (as such opinion(s) may be brought down or replaced from time to time), relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Patterson Companies, Inc.), Receivables Purchase Agreement (Patterson Companies, Inc.)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatoreach Xxxxxxxxx Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementClosing Date, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Purchaser Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Xxxxxxxxx Entity and any Affiliates thereof and not just a division of the Originatorany Xxxxxxxxx Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Xxxxxxxxx Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Xxxxxxxxx Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Xxxxxxxxx Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Xxxxxxxxx Entity or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Xxxxxxxxx Entity or an Affiliate thereof, Seller shall will lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator each Xxxxxxxxx Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) and their respective Affiliates strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Xxxxxxxxx Entity or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Governors consisting of at least three members, at least one member of which is an Independent DirectorGovernor;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A1) the selection, maintenance or replacement of the Independent DirectorGovernor, (B2) the dissolution or liquidation of Seller or (C3) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Governors (including the Independent DirectorGovernor);
(H) maintain Seller’s books and records separate from those of the Originator each Xxxxxxxxx Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Xxxxxxxxx Entity and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Xxxxxxxxx Entity and ensure insure that any consolidated financial statements of the Originator any Xxxxxxxxx Entity or any Affiliate thereof that include Seller and Seller, including any that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Xxxxxxxxx Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or Servicer in the Collateral performance of its duties hereunder) is the account party and from which Seller alone (or Servicer in the performance of its duties hereunder or Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Xxxxxxxxx Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness Indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Originators thereunder for the purchase of Receivables from the Originator Originators under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents articles of organization and bylaws in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents articles of organization or bylaws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its articles of organization and bylaws, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to Agent of the replacement or appointment of any governor that is to serve as an Independent Governor for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Governor” and Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Governor”;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, the Performance Undertaking and the other Transaction Documents, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, the Performance Undertaking or any other Transaction Document, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement Agreement, the Performance Undertaking, or any other Transaction Document, or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock membership units or payment of any subordinated indebtedness Indebtedness or other liabilities which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion opinion(s) issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxxx and Xxxxxx, P.A., as counsel for Seller and Seller, in connection with the Originator Transaction Documents (as such opinion(s) may be brought down or replaced from time to time), relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Patterson Companies, Inc.), Receivables Purchase Agreement (Patterson Companies, Inc.)
Purchasers’ Reliance. Seller acknowledges that the Administrative Agent, the Managing Agents and the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatorany other Person. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Administrative Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof each Related Entity and not just a division of the Originatorany Related Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Related Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Related Entity, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Related Entity, on a basis that reflects the services rendered to Seller and the Originatorsuch Related Entity;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, and, if allocate fairly and reasonably any such overhead for shared office is located in the offices of the Originator, Seller shall lease such office at a fair market rentspace;
(D) if applicable, have separate use stationery, invoices and checks in its own nameseparate from any other Person;
(E) conduct all transactions with the Originator and the Servicer each Related Entity (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-arm’s length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Related Entity on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Managers consisting of at least three (3) members, at least one (1) member of which is an Independent DirectorManager;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent DirectorManager, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Managers (including the Independent DirectorManager);
(H) maintain Seller’s books and records separate from those of the Originator any Related Entity and otherwise readily identifiable as its own assets rather than assets of the Originatorany Related Entity;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Related Entity and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof Related Entity that include Seller and that are filed with the Securities and Exchange Commission SEC or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Related Entity and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller (and Servicer on its behalf) alone makes deposits and from which the Seller alone (or the Collateral Servicer on its behalf and Administrative Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Related Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) except for the activities related to the Prior Receivables Facility which have been terminated, operate its business and activities such that: (i) it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement the Principal Transaction Documents and the Receivables Sale Agreementactivities incidental thereto; and (ii) does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, under the Fee Letter or as expressly contemplated hereby, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale AgreementAgreement and the Subordinated Note, to make payment to the Originator MPC LP, as an Originator, thereunder for the purchase of Receivables from the Originator MPC LP under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its operating agreement, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to the Administrative Agent of the replacement or appointment of any director that is to serve as an Independent Manager for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfies the criteria set forth in the definition herein of “Independent Manager”, and comply at all times with the terms of such organizational documents;
(N) maintain the effectiveness of, and continue to perform its obligations under the Receivables Sale AgreementPrincipal Transaction Documents to which it is a party (other than, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify with the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentapplicable L/C Issuer, a Letter of Credit or Letter of Credit Application);
(O) maintain its corporate separateness such that it does not merge merge, divide, or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxx Day, as counsel for Seller Seller, in connection with the closing or initial Credit Event under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 2 contracts
Samples: Receivables Sale Agreement (Marathon Petroleum Corp), Receivables Purchase Agreement (Marathon Petroleum Corp)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatoreach Xxxxxxxxx Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementMay 10, 2002, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Purchaser Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Xxxxxxxxx Entity and any Affiliates thereof and not just a division of the Originatorany Xxxxxxxxx Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Xxxxxxxxx Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Xxxxxxxxx Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Xxxxxxxxx Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Xxxxxxxxx Entity or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Xxxxxxxxx Entity or an Affiliate thereof, Seller shall will lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator each Xxxxxxxxx Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) and their respective Affiliates strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Xxxxxxxxx Entity or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Governors consisting of at least three members, at least one member of which is an Independent Director;Governor; 737768156 10446458
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A1) the selection, maintenance or replacement of the Independent DirectorGovernor, (B2) the dissolution or liquidation of Seller or (C3) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Governors (including the Independent DirectorGovernor);
(H) maintain Seller’s books and records separate from those of the Originator each Xxxxxxxxx Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Xxxxxxxxx Entity and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Xxxxxxxxx Entity and ensure insure that any consolidated financial statements of the Originator any Xxxxxxxxx Entity or any Affiliate thereof that include Seller and Seller, including any that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Xxxxxxxxx Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or Servicer in the Collateral performance of its duties hereunder) is the account party and from which Seller alone (or Servicer in the performance of its duties hereunder or Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Xxxxxxxxx Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness Indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Originators thereunder for the purchase of Receivables from the Originator Originators under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;; 29 737768156 10446458
(M) maintain its organizational documents articles of organization and bylaws in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents articles of organization or bylaws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its articles of organization and bylaws, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to Agent of the replacement or appointment of any governor that is to serve as an Independent Governor for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Governor” and Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Governor”;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, the Performance Undertaking and the other Transaction Documents, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, the Performance Undertaking or any other Transaction Document, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement Agreement, the Performance Undertaking, or any other Transaction Document, or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock membership units or payment of any subordinated indebtedness Indebtedness or other liabilities which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxxx and Xxxxxx, Professional Association, as counsel for Seller and the Originator Seller, dated June 19, 2002 (as such opinion may be brought down or replaced from time to time), relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Patterson Companies, Inc.), Receivables Purchase Agreement (Patterson Companies, Inc.)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatoreach Xxxxxxxxx Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementMay 10, 2002, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Purchaser Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Xxxxxxxxx Entity and any Affiliates thereof and not just a division of the Originatorany Xxxxxxxxx Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Xxxxxxxxx Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Xxxxxxxxx Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Xxxxxxxxx Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Xxxxxxxxx Entity or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Xxxxxxxxx Entity or an Affiliate thereof, Seller shall will lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator each Xxxxxxxxx Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) and their respective Affiliates strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Xxxxxxxxx Entity or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Governors consisting of at least three members, at least one member of which is an Independent DirectorGovernor;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A1) the selection, maintenance or replacement of the Independent DirectorGovernor, (B2) the dissolution or liquidation of Seller or (C3) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Governors (including the Independent DirectorGovernor);
(H) maintain Seller’s books and records separate from those of the Originator each Xxxxxxxxx Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Xxxxxxxxx Entity and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Xxxxxxxxx Entity and ensure insure that any consolidated financial statements of the Originator any Xxxxxxxxx Entity or any Affiliate thereof that include Seller and Seller, including any that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Xxxxxxxxx Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or Servicer in the Collateral performance of its duties hereunder) is the account party and from which Seller alone (or Servicer in the performance of its duties hereunder or Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Xxxxxxxxx Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness Indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Originators thereunder for the purchase of Receivables from the Originator Originators under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents articles of organization and bylaws in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents articles of organization or bylaws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its articles of organization and bylaws, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to Agent of the replacement or appointment of any governor that is to serve as an Independent Governor for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Governor” and Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Governor”;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, the Performance Undertaking and the other Transaction Documents, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, the Performance Undertaking or any other Transaction Document, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement Agreement, the Performance Undertaking, or any other Transaction Document, or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock membership units or payment of any subordinated indebtedness Indebtedness or other liabilities which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxxx and Xxxxxx, Professional Association, as counsel for Seller and the Originator Seller, dated June 19, 2002 (as such opinion may be brought down or replaced from time to time), relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Patterson Companies, Inc.), Receivables Purchase Agreement (Patterson Companies, Inc.)
Purchasers’ Reliance. Seller acknowledges that the Administrative Agent, the Managing Agents and the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatorany other Person. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Administrative Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof each Related Entity and not just a division of the Originatorany Related Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Related Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Related Entity, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Related Entity, on a basis that reflects the services rendered to Seller and the Originatorsuch Related Entity;
(C) clearly identify its maintain separate offices (by signage or otherwise) as its offices, if any, and, if any such office is located in the offices of the Originatorany Related Entity, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, which will be answered only in its name and have separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator and the Servicer each Related Entity (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-arm’s length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Related Entity on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Managers consisting of at least three (3) members, at least one (1) member of which is an Independent DirectorManager;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent DirectorManager, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Managers (including the Independent DirectorManager);
(H) maintain Seller’s books and records separate from those of the Originator any Related Entity and otherwise readily identifiable as its own assets rather than assets of the Originatorany Related Entity;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Related Entity and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof Related Entity that include Seller and that are filed with the Securities and Exchange Commission SEC or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Related Entity and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller (and Servicer on its behalf) alone makes deposits and from which the Seller alone (or the Collateral Servicer on its behalf and Administrative Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Related Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: (i) it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement the Principal Transaction Documents and the Receivables Sale Agreementactivities incidental thereto; and (ii) does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, under the Fee Letter or as expressly contemplated hereby, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale AgreementAgreement and the Subordinated Note, to make payment to the Originator MPC LP, as an Originator, thereunder for the purchase of Receivables from the Originator MPC LP under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its operating agreement, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to the Administrative Agent of the replacement or appointment of any director that is to serve as an Independent Manager for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfies the criteria set forth in the definition herein of “Independent Manager”, and comply at all times with the terms of such organizational documents;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementPrincipal Transaction Documents to which it is a party (other than, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify with the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentapplicable L/C Issuer, a Letter of Credit or Letter of Credit Application);
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxx Xxxxx L.L.P., as counsel for Seller Seller, in connection with the closing or initial Credit Event under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Marathon Petroleum Corp)
Purchasers’ Reliance. The Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Seller’s identity as a legal entity that is separate from the Originator. Therefore, from and after the date of execution and delivery of this Agreement, the Seller shall take all reasonable steps, steps including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, request to maintain the Seller’s identity as a separate legal entity and to make it manifest to third parties that the Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof and not just a division of the Originator. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller shall:
(Ai) conduct its own business in its own name and require that all full-time employees of the Seller, if any, identify themselves as such and not as employees of the OriginatorOriginator (including, without limitation, by means of providing such employees with business or identification cards identifying such employees as the Seller’s employees);
(Bii) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts, own funds for services provided to the Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Seller is also an employee, consultant or agent of the Originator, allocate the compensation of such employee, consultant or agent between the Seller and the Originator on a basis that which reflects the services rendered to the Seller and the Originator;
(Ciii) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originator, the Seller shall lease such office at a fair market rent;
(Div) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices stationery and checks in its own name;
(Ev) conduct all transactions with the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between the Seller and the Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(Fvi) at all times have a Board of Directors consisting of at least three members, at least one member of which its Board of Directors who is an “Independent Director” as provided in the Seller’s restated certificate of incorporation as in effect on the date hereof;
(Gvii) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of the Seller or (C) the initiation of, or participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving the Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(Hviii) maintain the Seller’s books and records as separate from those of the Originator and otherwise readily identifiable as its own assets rather than assets of the Originator;
(Iix) prepare its financial statements, if any, statements separately from those of the Originator and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof that include the Seller and have detailed notes clearly stating that are filed with the Securities and Exchange Commission or any other governmental agency have notes stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other Personthe Seller;
(Jx) except as herein specifically otherwise providedwith respect to funds deposited to, maintain or maintained in, the Depositary Account and except pursuant to the Cash Management Agreement, not commingle funds or other assets of the Seller separate from, and not commingled with, with those of the Originator and only not maintain bank accounts or other depository accounts to which the Seller alone Originator is the an account party, into which the Seller alone Originator makes deposits and or from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) Originator has the power to make withdrawals;
(Kxi) not permit the Originator to pay all any of the Seller’s operating expenses, if any, from the Seller’s own assets expenses (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(k));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Qxii) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Jxxxx Day, as counsel for Seller the Seller, in connection with the closing or initial Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Eastman Chemical Co)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s 's identity as a legal entity that is separate from the OriginatorOriginators. Therefore, from and after the date of execution and delivery of this AgreementJune 30, 2000, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s 's identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator Originators and any Affiliates thereof and not just a division of the Originatoran Originator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Originator or any Affiliate thereof (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller's employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts's own funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Originator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the Originator;such Originator or such Affiliate, as applicable; AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Originator or any Affiliate thereof, Seller shall lease such allocate fairly any overhead for shared office at a fair market rentspace;
(D) if applicablehave a separate telephone number or extension, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator Originators and the Servicer Servicers (including, without limitation, any delegation of its obligations hereunder as ServicerServicers) strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the each Originator (or any Affiliate thereof) on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have as its general partner a Board of Directors consisting of at least three members, limited liability company having at least one member of which is an Independent DirectorManager;
(G) observe all organizational corporate and/or limited partnership formalities as a distinct entity, and ensure that all corporate or and/or limited liability company partnership actions relating to (A) the selection, maintenance or replacement of the Independent Directorgeneral partner, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director)Manager of the general partner;
(H) maintain Seller’s 's books and records separate from those of the each Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorsuch Originator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the each Originator and ensure Morningstar and insure that any consolidated financial statements of the such Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other Person;Seller; AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the any Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits party and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the sole power to make withdrawals;
(K) pay all of Seller’s 's operating expenses, if any, expenses from the Seller’s 's own assets (except for certain payments by the Originator Originators or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale AgreementAgreement (it being understood that Seller may enter into the transactions contemplated by the Demand Note); and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the each Originator thereunder for the purchase of Receivables from the any Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents limited partnership agreement in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents limited partnership agreement in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreement and the Demand Note, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale AgreementAgreement or the Demand Note, or give any consent, waiver, directive or approval thereunder under the Receivables Sale Agreement or the Demand Note, or waive any default, action, omission or breach under the Receivables Sale Agreement or AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT under the Demand Note, or otherwise grant any indulgence thereunderunder the Receivables Sale Agreement or the Demand Note, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate limited partnership separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or partnership interest or payment of any subordinated indebtedness which that would cause the Required Capital Amount to cease to be so maintained; and;
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Locke & Xxxxxxxx LLP Liddell & Sapp LLP, as counsel for Seller Seller, in connexxxxx wixx xxx cloxxxx or initial Incremental Purchase or initial Reinvestment under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatorany other Person. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the any Originator and any Affiliates thereof (each an “HBI Party”) and not just a division of the Originatoran HBI Party. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany HBI Party (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany HBI Party thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such HBI Party, on a basis that reflects the services rendered to Seller and the Originatorsuch HBI Party;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany HBI Party, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the any Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the any Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors or Managers consisting of at least three (3) members, at least one (1) member of which is an Independent DirectorDirector or Manager, as applicable;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the Originator any HBI Party and otherwise readily identifiable as its own assets rather than assets of the Originatorany HBI Party;
(I) prepare its financial statements, if any, statements separately from those of the any Originator and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof HBI Party that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any HBI Party and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the an Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the any Originator thereunder for the purchase of Receivables from the such Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Limited Liability Company Agreement in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreement and the Performance Undertaking, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale AgreementAgreement or the Performance Undertaking, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or the Performance Undertaking or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Committed Purchasers;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxx LLP, as counsel for Seller Seller, in connection with the closing or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon SellerXxxxxx’s identity as a legal entity that is separate from the Originatoreach Xxxxxxxxx Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementClosing Date, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Purchaser Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Xxxxxxxxx Entity and any Affiliates thereof and not just a division of the Originatorany Xxxxxxxxx Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originator;any Xxxxxxxxx Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees); 30 RECEIVABLES PURCHASE AGREEMENT
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Xxxxxxxxx Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Xxxxxxxxx Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Xxxxxxxxx Entity or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Xxxxxxxxx Entity or an Affiliate thereof, Seller shall will lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator each Xxxxxxxxx Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) and their respective Affiliates strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Xxxxxxxxx Entity or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Governors consisting of at least three members, at least one member of which is an Independent DirectorGovernor;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A1) the selection, maintenance or replacement of the Independent DirectorGovernor, (B2) the dissolution or liquidation of Seller or (C3) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Governors (including the Independent DirectorGovernor);
(H) maintain Seller’s books and records separate from those of the Originator each Xxxxxxxxx Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Xxxxxxxxx Entity and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Xxxxxxxxx Entity and ensure insure that any consolidated financial statements of the Originator any Xxxxxxxxx Entity or any Affiliate thereof that include Seller and Seller, including any that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, 31 RECEIVABLES PURCHASE AGREEMENT those of the Originator any Xxxxxxxxx Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or Servicer in the Collateral performance of its duties hereunder) is the account party and from which Xxxxxx alone (or Servicer in the performance of its duties hereunder or Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Xxxxxxxxx Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness Indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Originators thereunder for the purchase of Receivables from the Originator Originators under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents articles of organization and bylaws in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents articles of organization or bylaws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its articles of organization and bylaws, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to Agent of the replacement or appointment of any governor that is to serve as an Independent Governor for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Governor” and Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Governor”;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, the Performance Undertaking and the other Transaction Documents, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, the Performance Undertaking or any other Transaction Document, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement Agreement, the Performance Undertaking, or any other Transaction 32 RECEIVABLES PURCHASE AGREEMENT Document, or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock membership units or payment of any subordinated indebtedness Indebtedness or other liabilities which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion opinions issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and Seller, in connection with the Originator Transaction Documents (as such opinions may be brought down or replaced from time to time), relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Patterson Companies, Inc.)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatoreach Xxxxxxxxx Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementMay 10, 2002, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Purchaser Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Xxxxxxxxx Entity and any Affiliates thereof and not just a division of the Originatorany Xxxxxxxxx Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Xxxxxxxxx Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, 37 742515825 10446458 consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Xxxxxxxxx Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Xxxxxxxxx Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Xxxxxxxxx Entity or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Xxxxxxxxx Entity or an Affiliate thereof, Seller shall will lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator each Xxxxxxxxx Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) and their respective Affiliates strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Xxxxxxxxx Entity or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Governors consisting of at least three members, at least one member of which is an Independent DirectorGovernor;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A1) the selection, maintenance or replacement of the Independent DirectorGovernor, (B2) the dissolution or liquidation of Seller or (C3) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Governors (including the Independent DirectorGovernor);
(H) maintain Seller’s books and records separate from those of the Originator each Xxxxxxxxx Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Xxxxxxxxx Entity and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Xxxxxxxxx Entity and ensure insure that any consolidated financial statements of the Originator any Xxxxxxxxx Entity or any Affiliate thereof that include Seller and Seller, including any that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Xxxxxxxxx Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or Servicer in the Collateral performance of its 742515825 10446458 duties hereunder) is the account party and from which Seller alone (or Servicer in the performance of its duties hereunder or Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Xxxxxxxxx Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness Indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Originators thereunder for the purchase of Receivables from the Originator Originators under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents articles of organization and bylaws in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents articles of organization or bylaws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its articles of organization and bylaws, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to Agent of the replacement or appointment of any governor that is to serve as an Independent Governor for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Governor” and Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Governor”;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, the Performance Undertaking and the other Transaction Documents, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, the Performance Undertaking or any other Transaction Document, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement Agreement, the Performance Undertaking, or any other Transaction Document, or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
the Required Purchasers; 742515825 10446458 (O) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock membership units or payment of any subordinated indebtedness Indebtedness or other liabilities which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion opinions issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and Seller, in connection with the Originator Transaction Documents (as such opinions may be brought down or replaced from time to time), relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Patterson Companies, Inc.)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s 's identity as a legal entity that is separate from the Originator. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s 's identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof and not just a division of the OriginatorOriginator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the OriginatorOriginator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller's employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts's own funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the OriginatorOriginator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the OriginatorOriginator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, and, if offices and allocate to Seller on a reasonable basis the costs of any such office is located in the offices of space shared with the Originator, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (CB) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s 's books and records separate from those of the Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the OriginatorOriginator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s 's operating expenses, if any, expenses from the Seller’s 's own assets (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i)7.10);
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Interest Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Interest Sale Agreement, to make payment to the Originator thereunder for the purchase of Receivables from the Originator under the Receivables Interest Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Organization Documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, this Section 6.1(i) of this Agreement7.10;
(N) maintain the effectiveness of, and continue to perform under the Receivables Interest Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Interest Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Interest Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(P) maintain at all times the Required Capital Amount adequate capital with which to conduct its business and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintainedmeet its obligations as they come due; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Xxxxxxxxx & Xxxxxxxx LLP Xxxxxxxxx, L.L.P. as counsel for the Seller Parties, in connection with the closing or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Ferrellgas Partners Finance Corp)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s 's identity as a legal entity that is separate from the OriginatorP&L and its other Affiliates. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s 's identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator P&L and any Affiliates thereof and not just a division of the OriginatorP&L or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the OriginatorP&L or any of its Affiliates other than Seller (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller's employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts's own funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the OriginatorP&L or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator P&L or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the OriginatorP&L or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the OriginatorP&L or any of its Affiliates, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator P&L and the Servicer its other Affiliates (including, without limitation, any delegation of its P&L's obligations hereunder as Servicer) strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator P&L or such other Affiliate on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least not less than three (3) members, at least one member of which is an Independent Director;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s 's books and records separate from those of the Originator P&L and any other Affiliate thereof and otherwise readily identifiable as its own assets books and records rather than assets books and records of the OriginatorP&L and any other Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator P&L and ensure its other Affiliates and insure that any consolidated financial statements of the Originator P&L or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of P&L or any other Affiliate thereof (subject to the Originator commingling of funds pursuant to the centralized cash management of P&L and its subsidiaries, to the extent permitted under the terms of the legal opinion referred to in clause (P) below) and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s 's operating expenses, if any, expenses from the Seller’s 's own assets (except for certain payments by the Originator P&L or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement, the Receivables Contribution Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, and (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents limited liability company charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Formation or operating agreement in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, this Section 6.1(i) of this Agreement7.1(i);
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(PO) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock membership interests or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(QP) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Sidley & Xxxxxxxx LLP Austin, as counsel for Seller Seller, in connection with the closing or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (P&l Coal Holdings Corp)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originator. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that any of the Collateral Agent, any Managing Agent or any Purchaser Agents may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof and not just a division of the OriginatorOriginator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the OriginatorOriginator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the OriginatorOriginator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the OriginatorOriginator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, and, if offices and allocate to Seller on a reasonable basis the costs of any such office is located in the offices of space shared with the Originator, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (CB) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the OriginatorOriginator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Administrative Agent or Managing Agents on behalf of the Purchasers hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i)7.10);
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Receivable Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Receivable Sale Agreement, to make payment to the Originator thereunder for the purchase of Receivables from the Originator under the Receivables Receivable Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents charter in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents Organization Documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, this Section 6.1(i7.10; and (2) its corporate charter, at all times that this Agreement is in effect, provides for (x) not less than ten (10) days’ prior written notice to the Agents of the replacement or appointment of any director that is to serve as an Independent Director for purposes of this AgreementAgreement and (y) the condition precedent to giving effect to such replacement or appointment that the Administrative Agent shall have determined in its reasonable judgment that the designated Person satisfies the criteria set forth in the definition herein of “Independent Director;”
(N) maintain the effectiveness of, and continue to perform under the Receivables Receivable Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Receivable Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Receivable Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing AgentAgents;
(O) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount adequate capital with which to conduct its business and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintainedmeet its obligations as they come due; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Xxxxxxxxx & Xxxxxxxx LLP as counsel for the Seller Parties, in connection with the closing or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Ferrellgas Partners Finance Corp)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from each of the OriginatorTenneco Automotive Entities. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of each of the Originator and any Affiliates thereof Tenneco Automotive Entities and not just a division of any of the OriginatorTenneco Automotive Entities. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shall:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originator;
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originator, allocate the compensation of such employee, consultant or agent between Seller and the Originator on a basis that reflects the services rendered to Seller and the Originator;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, and, if any such office is located in the offices of the Originator, Seller shall lease such office at a fair market rent;
(D) if applicable, have separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, for items shared between Seller and the Originator on the basis of actual use to the extent practicable, if any, and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) will at all times have a Board board of Directors directors consisting of at least three two members, at least one member of which is an Independent Director, and shall compensate the Independent Director from its own funds;
(GB) observe all organizational formalities Seller will maintain its own telephone number, stationery, and other business forms separate from those of any other Person (including each Tenneco Automotive Entity) and will conduct business in its own name except that, as a distinct entitygeneral matter, and ensure Obligors will not be informed in the first instance that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation Tenneco Operating is acting on behalf of Seller or as servicer;
(C) Seller will conduct its business at an office separate from the initiation ofoffices of the Originators (which however, participation in, acquiescence may be within the premises of and leased (at a fair market rent) from a Tenneco Automotive Entity in which case such office will be clearly identified (by signage or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Directorotherwise));
(HD) maintain Seller’s books and records separate from those of the Originator and otherwise readily identifiable as its own assets rather than assets of the Originator;
(I) prepare its financial statements, if any, separately from those of the Originator and ensure Seller will require that any consolidated financial statements of the Originator or any Affiliate thereof Tenneco Automotive Entities that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes stating will contain a footnote to the effect that Seller the Originators have sold the Receivable Assets to Seller, which is a separate corporate legal entity and that its assets which has then entered into this Agreement. Separate unaudited balance sheets and statements of income and cash flows (with no footnote disclosures) will also be available prepared for Seller. In addition to satisfy the claims aforementioned footnote to any consolidated financial statement, Seller will take (or require the Originators to take) certain actions to disclose publicly Seller’s separate existence and the transactions, including, without limitation, through the filing of UCC financing statements. Seller will not conceal or permit the Originators to conceal from any interested party any transfers contemplated by the Transaction Documents, although Obligors will not be affirmatively informed in the first instance of the creditors transfer of Seller and of no other Persontheir obligations;
(JE) except Seller will ensure that any allocations of direct, indirect or overhead expenses for items shared between Seller and any Tenneco Automotive Entity that are not included as herein specifically part of the Servicing Fee will be made among such entities to the extent practical on the basis of actual use or value of services rendered and otherwise providedon a basis reasonably related to actual use or the value of services rendered;
(F) Except as provided in paragraph (E) above regarding the allocation of certain shared overhead items, Seller will pay its own operating expenses and liabilities from its own funds;
(G) Seller will ensure that each of the Tenneco Automotive Entities, on the one hand, and Seller, on the other hand, maintain the funds its assets and liabilities in such a manner that it is not costly or other difficult to segregate, ascertain or otherwise identify Seller’s individual assets of Seller separate from, and not commingled with, liabilities from those of the Originator other or from those of any other person or entity. Except as set forth below, Seller will maintain its own books of account and only corporate records separate from the Tenneco Automotive Entities. Seller will not commingle or pool its funds (or other assets) or liabilities with those of any except as specifically provided in this Agreement with respect to the temporary commingling of collections of the Receivable Assets and except with respect to Servicer’s retention of Records pertaining to the Receivable Assets. Seller will not maintain joint bank accounts or other depository accounts to which the Seller alone is the account partyany Tenneco Automotive Entity (other than solely in their capacity as Servicer or, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunderas applicable, a permitted designee of Servicer) has the power to make withdrawalsindependent access;
(KH) pay Seller will strictly observe, and will require each of the Tenneco Automotive Entities to strictly observe, corporate formalities, including with respect to its dealings with each other, and will do all things reasonably necessary to ensure that no transfer of assets between any Originator, on the one hand, and Seller’s operating expenses, if anyon the other hand, from the Seller’s own assets (except for certain payments by the Originator or other Persons pursuant is made without adherence to allocation arrangements that comply with the requirements of this Section 6.1(i))corporate formalities;
(LI) operate All distributions made by Seller to Tenneco Operating as its business and activities such that: it does sole shareholder shall be made in accordance with applicable law; and
(J) Seller will not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist with any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments Tenneco Automotive Entities, even if permitted (although not expressly provided for deposit or collection or similar transactions in the ordinary course of business, (2in) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, includingunless such transaction is fair and equitable to Seller, without limitation, Section 6.1(i) of this Agreement;
(N) maintain on the effectiveness ofone hand, and continue to perform under such Tenneco Automotive Entity on the Receivables Sale Agreementother hand, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent and is of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such type of transaction that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in would be entered into by a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth prudent Person in the opinion issued position of Seller vis à vis such Tenneco Automotive Entity and that is on the date hereof by Xxxxxxxx & Xxxxxxxx LLP terms that are at least favorable as counsel for Seller and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all timesmay be obtained from a Person who is not Tenneco Automotive Entity.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from each of the OriginatorOriginators. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that any of the Collateral Agent, any Managing Agent or any Purchaser Agents may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the each Originator and any Affiliates thereof and not just a division of the Originatoran Originator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(Aa) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatoran Originator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(Bb) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatoran Originator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the such Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the Originatorsuch Originator or such Affiliate, as applicable;
(Cc) clearly identify its offices (by signage or otherwise) as its offices, if any, and, if offices and allocate to Seller on a reasonable basis the costs of any such office is located in the offices of the space shared with an Originator, Seller shall lease such office at a fair market rent;
(Dd) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(Ee) conduct all transactions with the an Originator and or the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the such Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(Ff) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(Gg) observe all organizational formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (Bi) the dissolution or liquidation of Seller or (Cii) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(Hh) maintain Seller’s books and records separate from those of the an Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorsuch Originator and any Affiliate thereof;
(Ii) prepare its financial statements, if any, statements separately from those of the each Originator and ensure insure that any consolidated financial statements of the any Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(Jj) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the an Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Administrative Agent or Managing Agents on behalf of the Purchasers hereunder) has the power to make withdrawals;
(Kk) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the an Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i)7.10);
(Ll) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Receivable Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Receivable Sale Agreement, to make payment to the applicable Originator thereunder for the purchase of Receivables from the such Originator under the Receivables Receivable Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(Mm) maintain its organizational documents charter in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents Organization Documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, this Section 6.1(i7.10; and (2) its corporate charter, at all times that this Agreement is in effect, provides for (x) not less than ten (10) days’ prior written notice to the Agents of the replacement or appointment of any director that is to serve as an Independent Director for purposes of this AgreementAgreement and (y) the condition precedent to giving effect to such replacement or appointment that the Administrative Agent shall have determined in its reasonable judgment that the designated Person satisfies the criteria set forth in the definition herein of “Independent Director;”
(Nn) maintain the effectiveness of, and continue to perform under the Receivables Receivable Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Receivable Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Receivable Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing AgentAgents;
(Oo) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(Pp) maintain at all times the Required Capital Amount adequate capital with which to conduct its business and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintainedmeet its obligations as they come due; and
(Qq) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Xxxxxxxxx & Xxxxxxxx LLP as counsel for the Seller Parties, in connection with the closing or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Ferrellgas Partners Finance Corp)
Purchasers’ Reliance. Each Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon such Seller’s identity as a legal entity that is separate from the OriginatorOriginators. Therefore, from and after June 30, 2000 (or, May 15, 2002, in the date case of execution Dairy Group II and delivery March 30, 2004, in the case of this AgreementWhiteWave), each Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain such Seller’s identity as a separate legal entity and to make it manifest to third parties that such Seller is an entity with assets and liabilities distinct from those of the Originator Originators and any Affiliates thereof and not just a division of the Originatoran Originator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, each Seller shallwill:
(A) conduct its own business in its own name and require that all full-time fulltime employees of such Seller, if any, identify themselves as such and not as employees of the Originatorany Originator or any Affiliate thereof (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as such Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from such Seller’s bank accountsown funds, for services provided to such Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of such Seller is also an employee, consultant or agent of the Originatorany Originator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between such Seller and the Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to such Seller and the Originatorsuch Originator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Originator or any Affiliate thereof, Seller shall lease such allocate fairly any overhead for shared office at a fair market rentspace;
(D) if applicablehave a separate telephone number or extension, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator Originators and the Servicer Servicers (including, without limitation, any delegation of its obligations hereunder as ServicerServicers) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between such Seller and the each Originator (or any Affiliate thereof) on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have as its general partner a Board of Directors consisting of at least three members, limited liability company having at least one member of which is an Independent DirectorManager;
(G) observe all organizational corporate and/or limited partnership formalities as a distinct entity, and ensure that all corporate or and/or limited liability company partnership actions relating to (A) the selection, maintenance or replacement of the Independent Directorgeneral partner, (B) the dissolution or liquidation of such Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director)Manager of the general partner;
(H) maintain such Seller’s books and records separate from those of the each Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorsuch Originator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the each Originator and ensure insure that any consolidated financial statements of the such Originator or any Affiliate thereof that include such Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that such Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other Personsuch Seller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of such Seller separate from, and not commingled with, those of the any Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the such Seller alone is the account party, into which the Seller alone makes deposits party and from which the such Seller alone (or the Collateral Agent or Managing Agents hereunder) has the sole power to make withdrawals;
(K) pay all of such Seller’s operating expenses, if any, expenses from the such Seller’s own assets (except for certain payments by the Originator Originators or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale AgreementAgreement to which it is a party (it being understood that Dairy Group, Dairy Group II and WhiteWave may enter into the transactions contemplated by the respective Demand Notes); and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale AgreementAgreement to which it is a party, to make payment to the each Originator thereunder for the purchase of Receivables from the any Originator under the such Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents limited partnership agreement in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents limited partnership agreement in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreement to which it is a party (and, in the case of Dairy Group, Dairy Group II and WhiteWave, the respective Demand Notes), such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the such Receivables Sale AgreementAgreement or the Demand Notes, or give any consent, waiver, directive or approval thereunder under such Receivables Sale Agreement or the Demand Notes, or waive any default, action, omission or breach under the such Receivables Sale Agreement or under the Demand Notes, or otherwise grant any indulgence thereunderunder such Receivables Sale Agreement or the Demand Notes, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate limited partnership separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement to which it is a party) and refrain from making any dividend, distribution, redemption of capital stock or partnership interest or payment of any subordinated indebtedness which that would cause the such Required Capital Amount to cease to be so maintained; and;
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Lxxxx Lxxxxxx & Xxxxxxxx LLP Sxxx LLP, as counsel for Seller such Seller, in connection with the closing or initial Incremental Purchase or initial Reinvestment under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Each Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon such Seller’s identity as a legal entity that is separate from the OriginatorOriginators. Therefore, from and after June 30, 2000 (or, May 15, 2002, in the date case of execution and delivery of this AgreementDairy Group II), each Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain such Seller’s identity as a separate legal entity and to make it manifest to third parties that such Seller is an entity with assets and liabilities distinct from those of the Originator Originators and any Affiliates thereof and not just a division of the Originatoran Originator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, each Seller shallwill:
(A) conduct its own business in its own name and require that all full-time fulltime employees of such Seller, if any, identify themselves as such and not as employees of the Originatorany Originator or any Affiliate thereof (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as such Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from such Seller’s bank accountsown funds, for services provided to such Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of such Seller is also an employee, consultant or agent of the Originatorany Originator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between such Seller and the Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to such Seller and the Originatorsuch Originator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Originator or any Affiliate thereof, Seller shall lease such allocate fairly any overhead for shared office at a fair market rentspace;
(D) if applicablehave a separate telephone number or extension, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator Originators and the Servicer Servicers (including, without limitation, any delegation of its obligations hereunder as ServicerServicers) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between such Seller and the each Originator (or any Affiliate thereof) on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have as its general partner a Board of Directors consisting of at least three members, limited liability company having at least one member of which is an Independent DirectorManager;
(G) observe all organizational corporate and/or limited partnership formalities as a distinct entity, and ensure that all corporate or and/or limited liability company partnership actions relating to (A) the selection, maintenance or replacement of the Independent Directorgeneral partner, (B) the dissolution or liquidation of such Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director)Manager of the general partner;
(H) maintain such Seller’s books and records separate from those of the each Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorsuch Originator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the each Originator and ensure insure that any consolidated financial statements of the such Originator or any Affiliate thereof that include such Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that such Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other Personsuch Seller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of such Seller separate from, and not commingled with, those of the any Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the such Seller alone is the account party, into which the Seller alone makes deposits party and from which the such Seller alone (or the Collateral Agent or Managing Agents hereunder) has the sole power to make withdrawals;
(K) pay all of such Seller’s operating expenses, if any, expenses from the such Seller’s own assets (except for certain payments by the Originator Originators or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale AgreementAgreement to which it is a party (it being understood that Dairy Group and Dairy Group II may enter into the transactions contemplated by the respective Demand Notes); and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale AgreementAgreement to which it is a party, to make payment to the each Originator thereunder for the purchase of Receivables from the any Originator under the such Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents limited partnership agreement in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents limited partnership agreement in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its limited partnership agreement, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to the Agent of the replacement or appointment of any director that is to serve as an Independent Manager for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that the applicable Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Manager” and the Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Manager;”
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreement to which it is a party (and, in the case of Dairy Group and Dairy Group II, the respective Demand Notes), such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the such Receivables Sale AgreementAgreement or the Demand Notes, or give any consent, waiver, directive or approval thereunder under such Receivables Sale Agreement or the Demand Notes, or waive any default, action, omission or breach under the such Receivables Sale Agreement or under the Demand Notes, or otherwise grant any indulgence thereunderunder such Receivables Sale Agreement or the Demand Notes, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate limited partnership separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement to which it is a party) and refrain from making any dividend, distribution, redemption of capital stock or partnership interest or payment of any subordinated indebtedness which that would cause the such Required Capital Amount to cease to be so maintained; and;
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Xxxxxx, Xxxx & Xxxxxxxx LLP LLP, as counsel for Seller such Seller, in connection with this Agreement, dated as of the date February 19, 2019, and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. The Seller acknowledges that the -------------------- Agents and the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Seller’s 's identity as a legal entity that is separate from each of the OriginatorOriginators. Therefore, from and after the date of execution and delivery of this Agreement, the Seller shall take all reasonable steps, steps including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, request to maintain the Seller’s 's identity as a separate legal entity and to make it manifest to third parties that the Seller is an entity with assets and liabilities distinct from those of each of the Originator Originators and any Affiliates thereof and not just a division of the an Originator. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller shall:
(Ai) conduct maintain its own business in separate books and records and bank accounts;
(ii) at all times hold itself out to the public as a legal entity separate from the Servicer, the Originators, any Affiliates thereof or any other Person;
(iii) at all times have at least one member of its Board of Directors who is an Independent Director;
(iv) file its own name and require that all full-time employees of Sellertax returns, if any, identify themselves as such and not as employees of the Originator;
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts, for services provided to Seller by such employees, consultants and agents andmay be required under applicable law, to the extent not part of a consolidated group filing a consolidated return or returns, and pay any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originator, allocate the compensation of such employee, consultant or agent between Seller and the Originator on a basis that reflects the services rendered taxes so required to Seller and the Originatorbe paid under applicable law;
(Cv) clearly identify not commingle its offices assets with assets of any other Person (except as contemplated by signage or otherwise) as its offices, if any, and, if any such office is located in the offices of the Originator, Seller shall lease such office at a fair market rentTransaction Documents);
(Dvi) if applicable, have separate stationery, invoices and checks conduct its business in its own name;
(Evii) conduct all transactions with the Originator and the Servicer maintain separate financial statements;
(including, without limitation, any delegation viii) pay its own liabilities only out of its obligations hereunder as Servicerown funds;
(ix) strictly on maintain an arm’s-arm's length basis, allocate all overhead expenses relationship with its Affiliates;
(including, without limitation, telephone and other utility charges)x) pay the salaries of its own employees, if any, for items shared between Seller and the Originator on the basis of actual use to the extent practicable, if any, and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(Fxi) at all times have a Board not guarantee or become obligated for the debts of Directors consisting any other Person or hold out its credit as being available to satisfy the obligations of at least three members, at least one member of which is an Independent Directorothers;
(Gxii) observe all organizational formalities as a distinct entityallocate fairly and reasonably any overhead for shared office space;
(xiii) use separate stationery, invoices and ensure that all corporate checks;
(xiv) not pledge its assets for the benefit of any other Person or limited liability company actions relating to (A) the selection, maintenance make any loans or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent advances to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized Person (except as contemplated by unanimous vote the Transaction Documents);
(xv) correct any known misunderstanding regarding its separate identity;
(xvi) maintain adequate capital in light of its contemplated business purposes; and
(xvii) cause its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the Originator and otherwise readily identifiable as its own assets rather than assets of the Originator;
(I) prepare its financial statements, if any, separately from those of the Originator and ensure that any consolidated financial statements of the Originator to meet at least annually or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes stating to the effect that Seller is a separate corporate entity and that its assets will be available to satisfy the claims of the creditors of Seller and of no other Person;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, from the Seller’s own assets (except for certain payments by the Originator or other Persons act pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent and keep minutes of the Collateral Agent such meetings and each Managing Agentactions and observe all other Michigan corporate formalities;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivable Interest Purchase Agreement (Federal Mogul Corp)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s 's identity as a legal entity that is separate from the Provider, the Servicer and each Originator. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s 's identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator Originators, the Servicer, the Provider and any Affiliates thereof and not just a division of the OriginatorProvider, the Servicer, any Originator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-full time employees of Seller, if any, identify themselves as such and not as employees of any Originator, the OriginatorServicer or the Provider (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller's employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts's own funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of any Originator, the OriginatorServicer, the Provider or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and such Originator, the Originator Servicer, the Provider or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and such Originator, the OriginatorServicer, the Provider or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of any Originator, the OriginatorServicer, the Provider or any Affiliate thereof, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator Provider, the Originators and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-arm's length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and Seller, the Servicer, the Provider or any Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s 's books and records separate from those of the Originator Originators, the Servicer, the Provider and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the OriginatorOriginators, the Servicer, the Provider and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator Originators, the Servicer, the Provider or any Affiliate thereof and ensure insure that any consolidated financial statements of the Originator Originators, the Servicer, the Provider or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of any Originator, the Originator Servicer, the Provider or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s 's operating expenses, if any, expenses from the Seller’s 's own assets (except for certain payments by the Originator Originators, the Servicer, the Provider or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale AgreementAgreements; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale AgreementAgreements, to make payment to the Originator Originators thereunder for the purchase of Receivables from the Originator Originators under the Receivables Sale AgreementAgreements, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents articles of incorporation or by-laws (or equivalent thereof) in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the each Receivables Sale AgreementAgreement and the Performance Undertaking, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the any Receivables Sale AgreementAgreement or the Performance Undertaking, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the any Receivables Sale Agreement or the Performance Undertaking or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(P) maintain at all times the Required Capital Amount (as defined in each Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion letter issued on the date hereof by Xxxxxxxx Drinker Biddle & Xxxxxxxx LLP Reath LLP, as counsel for Seller Seller, in connection with the cloxxxx xr ixxxxxl Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatoreach Cardinal Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementJune 29, 2000, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Cardinal Entity and any Affiliates thereof and not just a division of the Originatorany Cardinal Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(Ai) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Cardinal Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(Bii) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Cardinal Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Cardinal Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Cardinal Entity or such Affiliate, as applicable;
(Ciii) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Cardinal Entity, Seller shall will lease such office at a fair market rent;
(Div) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(Ev) conduct all transactions with the Originator each Cardinal Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Cardinal Entity on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(Fvi) (A) at all times have a Board of Directors Managers consisting of at least three members, at least one member of which is an Independent DirectorManager reasonably acceptable to the Agent; provided that any Independent Manager that is employed by Global Securitization Services, LLC, Lord Securities Corporation or Amacar Group LLC for the purpose of providing director services to special purpose entities and that meets the other requirements of an Independent Manager set forth herein shall be deemed approved by the Agent and (B) not remove any Independent Manager or replace any Independent Manager (other than a replacement by an individual employed by Global Securitization Services, LLC, Lord Securities Corporation or Amacar Group LLC for the purpose of providing director services to special purpose entities and who otherwise meets the other requirements of an Independent Manager set forth herein; provided that written notice of the replacement of the current Independent Manager with an Independent Manager employed by one of the entities specifically referred to herein will be furnished to the Agent), in each case without the prior written consent of the Agent;
(Gvii) observe all organizational corporate formalities as a distinct entity, and ensure that (I) all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B1) the dissolution or liquidation of Seller or (C2) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Managers (including the Independent Director)Manager) and (II) all limited liability company actions relating to the selection, maintenance or replacement of the Independent Manager are duly authorized in compliance with Seller’s articles of organization and operating agreement;
(Hviii) maintain Seller’s books and records separate from those of the Originator each Cardinal Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Cardinal Entity and any Affiliate thereof;
(Iix) prepare its financial statements, if any, statements separately from those of the Originator each Cardinal Entity and ensure insure that any consolidated financial statements of the Originator any Cardinal Entity or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(Jx) except to the extent funds of Seller and Xxxxxxx and funds of Seller and Cardinal may be commingled in connection with the performance by Xxxxxxx and Cardinal of their respective servicing obligations hereunder as herein specifically otherwise providedServicer and Permitted Sub-Servicer, respectively, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Cardinal Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(Kxi) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Cardinal Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(Lxii) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement (it being understood that Seller may make the Demand Loans to Cardinal pursuant to and in accordance with the terms of the Cash Management Agreement); and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Xxxxxxx thereunder for the purchase of Receivables from the Originator Xxxxxxx under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(Mxiii) maintain its organizational documents limited liability company charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents articles of organization and operating agreement in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(Nxiv) maintain the effectiveness of, and continue to perform and require Xxxxxxx, the Originators and the Approved Sub-Originators to perform under the Receivables Sale Agreement, each Xxxxxxx RPA, each Sub-Originator Sale Agreement, the Cash Management Agreement and the Performance Guaranty, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, each Xxxxxxx RPA, each Sub-Originator Sale Agreement, the Cash Management Agreement or the Performance Guaranty, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement thereunder or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Financial Institutions;
(Oxv) maintain its corporate limited liability company separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(Pxvi) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or membership interest or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Qxvii) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller Seller, in connection with the closing the Existing Agreement or any amendment thereto and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.. 34
Appears in 1 contract
Samples: Receivables Purchase Agreement (Cardinal Health Inc)
Purchasers’ Reliance. Seller acknowledges that the Agent, the Purchasers and the L/C Issuer are entering into the transactions contemplated by this Agreement in reliance upon Seller’s 's identity as a legal entity that is separate from the Performance Guarantor or Originator. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent the L/C Issuer or any Purchaser may from time to time reasonably request, to maintain Seller’s 's identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof and not just a division of the OriginatorPerformance Guarantor, Originator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the OriginatorOriginator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller's employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts's own funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the OriginatorOriginator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the OriginatorOriginator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originator, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s 's books and records separate from those of the Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the OriginatorOriginator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s 's operating expenses, if any, expenses from the Seller’s 's own assets (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator thereunder for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreement and the Performance Undertaking, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale AgreementAgreement or the Performance Undertaking, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or the Performance Undertaking or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness or under the L/C Note (as defined in the Receivables Sale Agreement) which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Jones Day, as counsel for Seller Seller, in connection with the closing or ixxxxxl Credit Event under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Administrative Agent, the Managing Agents and the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatorany other Person. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Administrative Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof each Related Entity and not just a division of the Originatorany Related Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Related Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Related Entity, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Related Entity, on a basis that reflects the services rendered to Seller and the Originatorsuch Related Entity;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, and, if allocate fairly and reasonably any such overhead for shared office is located in the offices of the Originator, Seller shall lease such office at a fair market rentspace;
(D) if applicable, have separate use stationery, invoices and checks in its own nameseparate from any other Person;
(E) conduct all transactions with the Originator and the Servicer each Related Entity (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-arm’s length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Related Entity on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Managers consisting of at least three (3) members, at least one (1) member of which is an Independent DirectorManager;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent DirectorManager, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Managers (including the Independent DirectorManager);
(H) maintain Seller’s books and records separate from those of the Originator any Related Entity and otherwise readily identifiable as its own assets rather than assets of the Originatorany Related Entity;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Related Entity and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof Related Entity that include Seller and that are filed with the Securities and Exchange Commission SEC or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Related Entity and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller (and Servicer on its behalf) alone makes deposits and from which the Seller alone (or the Collateral Servicer on its behalf and Administrative Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Related Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) except for the activities related to the Prior Receivables Facility which have been terminated, operate its business and activities such that: (i) it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement the Principal Transaction Documents and the Receivables Sale Agreementactivities incidental thereto; and (ii) does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, under the Fee Letter or as expressly contemplated hereby, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale AgreementAgreement and the Subordinated Note, to make payment to the Originator MPC LP, as an Originator, thereunder for the purchase of Receivables from the Originator MPC LP under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its operating agreement, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to the Administrative Agent of the replacement or appointment of any director that is to serve as an Independent Manager for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfies the criteria set forth in the definition herein of “Independent Manager”, and comply at all times with the terms of such organizational documents;
(N) maintain the effectiveness of, and continue to perform its obligations under the Receivables Sale AgreementPrincipal Transaction Documents to which it is a party (other than, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify with the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentapplicable L/C Issuer, a Letter of Credit or Letter of Credit Application);
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxx Day, as counsel for Seller Seller, in connection with the closing or initial Credit Event under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Marathon Petroleum Corp)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s 's identity as a legal entity that is separate from the OriginatorPlexus. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s 's identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator Plexus and any Affiliates thereof and not just a division of the OriginatorPlexus or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the OriginatorPlexus or any Affiliate thereof (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller's employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts's own funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the OriginatorPlexus or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator Plexus or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the OriginatorPlexus or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the OriginatorPlexus, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator and the Servicer Plexus or any Affiliate thereof (including, without limitation, any delegation by Plexus of its obligations hereunder as Servicer) strictly on an arm’sarm's-length basis, and allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator Plexus or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s 's books and records separate from those of the Originator Plexus and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the OriginatorPlexus and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator Plexus and ensure insure that any consolidated financial statements of the Originator Plexus or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator Plexus or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s 's operating expenses, if any, expenses from the Seller’s 's own assets (except for certain payments by the Originator Plexus or other Persons any Affiliate thereof pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the each Originator thereunder for the purchase of Receivables from the such Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which that would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Quarxxx & Xxxxxxxx LLP Xradx XXX, as counsel for Seller Seller, in connection with the closing or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatoreach Xxxxxxxxx Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementApril 27, 2007, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Xxxxxxxxx Entity and any Affiliates thereof and not just a division of the Originatorany Xxxxxxxxx Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Xxxxxxxxx Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Xxxxxxxxx Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Xxxxxxxxx 737579529 11089703 24 12794124v1 Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Xxxxxxxxx Entity or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Xxxxxxxxx Entity or an Affiliate thereof, Seller shall will lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator each Xxxxxxxxx Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) and their respective Affiliates strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Xxxxxxxxx Entity or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Governors consisting of at least three members, at least one member of which is an Independent DirectorGovernor;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A1) the selection, maintenance or replacement of the Independent DirectorGovernor, (B2) the dissolution or liquidation of Seller or (C3) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Governors (including the Independent DirectorGovernor);
(H) maintain Seller’s books and records separate from those of the Originator each Xxxxxxxxx Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Xxxxxxxxx Entity and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Xxxxxxxxx Entity and ensure insure that any consolidated financial statements of the Originator any Xxxxxxxxx Entity or any Affiliate thereof that include Seller and Seller, including any that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Xxxxxxxxx Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or Servicer in the Collateral performance of its duties hereunder) is the account party and from which Seller alone (or Servicer in the performance of its duties hereunder or Agent or Managing Agents hereunder) has the power to make withdrawals;; 737579529 11089703 25
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Xxxxxxxxx Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness Indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Originators thereunder for the purchase of Receivables from the Originator Originators under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents articles of organization and bylaws in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents articles of organization or bylaws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its articles of organization and bylaws, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to Agent of the replacement or appointment of any governor that is to serve as an Independent Governor for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Governor” and Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Governor”;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, the Performance Undertaking and the other Transaction Documents, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, the Performance Undertaking or any other Transaction Document, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement Agreement, the Performance Undertaking, or any other Transaction Document, or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated 737579529 11089703 26 12794124v1 herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock membership units or payment of any subordinated indebtedness Indebtedness or other liabilities which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxxx and Xxxxxx, Professional Association, as counsel for Seller and the Originator Seller, dated April 27, 2007 (as such opinion may be brought down or replaced from time to time), relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Contract Purchase Agreement (Patterson Companies, Inc.)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from each of the OriginatorOriginators. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Funding Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the each Originator and any Affiliates thereof and not just a division of the Originatoran Originator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Originator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatoran Originator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the such Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the Originatorsuch Originator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the an Originator, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the each Originator and the Master Servicer (including, without limitation, any delegation of its obligations hereunder as Master Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the such Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the each Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatoran Originator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the each Originator and ensure insure that any consolidated financial statements of the any Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the any Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the an Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the applicable Originator thereunder for the purchase of Receivables from the such Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its corporate charter, at all times that this Agreement is in effect, (x) contains a definition of “Independent Director” identical to the definition of such term contained herein and (y) provides for not less than ten (10) days’ prior written notice to the secured creditors of the Seller of the replacement or appointment of any director that is to serve as an Independent Director for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that the Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Director” and such creditors’ written acknowledgement that in their reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Director;”
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreement and the Performance Undertaking, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale AgreementAgreement or the Performance Undertaking, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or the Performance Undertaking or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxx Xxxx LLP, as counsel for Seller Seller, in connection with the closing or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Ralcorp Holdings Inc /Mo)
Purchasers’ Reliance. Seller acknowledges that the Agent, the Managing Agents and the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Performance Guarantor and each Originator. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the each Originator and any Affiliates thereof and not just a division of the OriginatorPerformance Guarantor, any Originator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Originator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Originator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the such Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the Originatorsuch Originator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the an Originator, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator Originators and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the any Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director; provided that in the case of any Independent Director having become incapacitated, died or resigned without adequate prior notice to the Seller, such event shall not constitute a breach of this Section 7.1(i)(F) unless the Seller shall have failed to appoint a replacement Independent Director meeting the requirements of this Agreement within a period of fifteen days after obtaining knowledge of such death or resignation;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the each Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorsuch Originator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the each Originator and ensure insure that any consolidated financial statements of the such Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the any Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the an Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale AgreementAgreements; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale AgreementAgreements, to make payment to the applicable Originator thereunder for the purchase of Receivables from the such Originator under the applicable Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreements and the Performance Undertaking, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the any Receivables Sale AgreementAgreement or the Performance Undertaking, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the any Receivables Sale Agreement or the Performance Undertaking or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(QP) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxx Day, as counsel for Seller Seller, in connection with the closing or initial Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s 's identity as a legal entity that is separate from the Originator. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any either Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s 's identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof and not just a division of the OriginatorOriginator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the OriginatorOriginator (including, without limitation, by 19 means of providing appropriate employees with business or identification cards identifying such employees as Seller's employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts's own funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the OriginatorOriginator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the OriginatorOriginator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originator, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s 's books and records separate from those of the Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the OriginatorOriginator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof that include Seller and that are filed 20 with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s 's operating expenses, if any, expenses from the Seller’s 's own assets (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: that it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator thereunder for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Schiff Hardin & Xxxxxxxx LLP Waite, as counsel for Seller Seller, in conxxxxxxx xxxx the xxxxing or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Anixter International Inc)
Purchasers’ Reliance. Each Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon such Seller’s identity as a legal entity that is separate from the OriginatorOriginators. Therefore, from and after June 30, 2000 (or, May 15, 2002, in the date case of execution Dairy Group II, March 30, 2004, in the case of WhiteWave and delivery March 29, 2010, in the case of this AgreementMorningstar Receivables), each Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain such Seller’s identity as a separate legal entity and to make it manifest to third parties that such Seller is an entity with assets and liabilities distinct from those of the Originator Originators and any Affiliates thereof and not just a division of the Originatoran Originator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, each Seller shallwill:
(A) conduct its own business in its own name and require that all full-time fulltime employees of such Seller, if any, identify themselves as such and not as employees of the Originatorany Originator or any Affiliate thereof (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as such Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from such Seller’s bank accountsown funds, for services provided to such Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of such Seller is also an employee, consultant or agent of the Originatorany Originator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between such Seller and the Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to such Seller and the Originatorsuch Originator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Originator or any Affiliate thereof, Seller shall lease such allocate fairly any overhead for shared office at a fair market rentspace;
(D) if applicablehave a separate telephone number or extension, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator Originators and the Servicer Servicers (including, without limitation, any delegation of its obligations hereunder as ServicerServicers) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between such Seller and the each Originator (or any Affiliate thereof) on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have as its general partner a Board of Directors consisting of at least three members, limited liability company having at least one member of which is an Independent DirectorManager;
(G) observe all organizational corporate and/or limited partnership formalities as a distinct entity, and ensure that all corporate or and/or limited liability company partnership actions relating to (A) the selection, maintenance or replacement of the Independent Directorgeneral partner, (B) the dissolution or liquidation of such Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director)Manager of the general partner;
(H) maintain such Seller’s books and records separate from those of the each Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorsuch Originator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the each Originator and ensure insure that any consolidated financial statements of the such Originator or any Affiliate thereof that include such Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that such Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other Personsuch Seller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of such Seller separate from, and not commingled with, those of the any Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the such Seller alone is the account party, into which the Seller alone makes deposits party and from which the such Seller alone (or the Collateral Agent or Managing Agents hereunder) has the sole power to make withdrawals;
(K) pay all of such Seller’s operating expenses, if any, expenses from the such Seller’s own assets (except for certain payments by the Originator Originators or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale AgreementAgreement to which it is a party (it being understood that Dairy Group, Dairy Group II, Morningstar Receivables and WhiteWave may enter into the transactions contemplated by the respective Demand Notes); and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale AgreementAgreement to which it is a party, to make payment to the each Originator thereunder for the purchase of Receivables from the any Originator under the such Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents limited partnership agreement in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents limited partnership agreement in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its limited partnership agreement, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to the Agent of the replacement or appointment of any director that is to serve as an Independent Manager for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that the applicable Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Manager” and the Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Manager;”
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreement to which it is a party (and, in the case of Dairy Group, Dairy Group II, Morningstar Receivables and WhiteWave, the respective Demand Notes), such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the such Receivables Sale AgreementAgreement or the Demand Notes, or give any consent, waiver, directive or approval thereunder under such Receivables Sale Agreement or the Demand Notes, or waive any default, action, omission or breach under the such Receivables Sale Agreement or under the Demand Notes, or otherwise grant any indulgence thereunderunder such Receivables Sale Agreement or the Demand Notes, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate limited partnership separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement to which it is a party) and refrain from making any dividend, distribution, redemption of capital stock or partnership interest or payment of any subordinated indebtedness which that would cause the such Required Capital Amount to cease to be so maintained; and;
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Xxxxx Xxxxxxx & Xxxxxxxx LLP Xxxx LLP, as counsel for Seller such Seller, in connection with the closing or initial Incremental Purchase or initial Reinvestment under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon SellerXxxxxx’s identity as a legal entity that is separate from the Originatoreach Xxxxxxxxx Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementApril 27, 2007, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Xxxxxxxxx Entity and any Affiliates thereof and not just a division of the Originatorany Xxxxxxxxx Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Xxxxxxxxx Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Xxxxxxxxx Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Xxxxxxxxx Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Xxxxxxxxx Entity or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Xxxxxxxxx Entity or an Affiliate thereof, Seller shall will lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator each Xxxxxxxxx Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) and their respective Affiliates strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Xxxxxxxxx Entity or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Governors consisting of at least three members, at least one member of which is an Independent DirectorGovernor;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A1) the selection, maintenance or replacement of the Independent DirectorGovernor, (B2) the dissolution or liquidation of Seller or (C3) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Governors (including the Independent DirectorGovernor);
(H) maintain Seller’s books and records separate from those of the Originator each Xxxxxxxxx Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Xxxxxxxxx Entity and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Xxxxxxxxx Entity and ensure insure that any consolidated financial statements of the Originator any Xxxxxxxxx Entity or any Affiliate thereof that include Seller and Seller, including any that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Xxxxxxxxx Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or Servicer in the Collateral performance of its duties hereunder) is the account party and from which Seller alone (or Servicer in the performance of its duties hereunder or Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Xxxxxxxxx Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness Indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Originators thereunder for the purchase of Receivables from the Originator Originators under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents articles of organization and bylaws in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents articles of organization or bylaws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its articles of organization and bylaws, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to Agent of the replacement or appointment of any governor that is to serve as an Independent Governor for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Governor” and Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Governor”;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, the Performance Undertaking and the other Transaction Documents, such that it does not amend, restate, supplement, cancel, terminate or 22 otherwise modify the Receivables Sale Agreement, the Performance Undertaking or any other Transaction Document, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement Agreement, the Performance Undertaking, or any other Transaction Document, or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock membership units or payment of any subordinated indebtedness Indebtedness or other liabilities which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxxx and Xxxxxx, Professional Association, as counsel for Seller and the Originator Seller, dated April 27, 2007 (as such opinion may be brought down or replaced from time to time), relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Contract Purchase Agreement (Patterson Companies, Inc.)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatorany other Person. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof (each an “HBI Party”) and not just a division of the Originatoran HBI Party. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-full time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany HBI Party (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany HBI Party thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such HBI Party, on a basis that reflects the services rendered to Seller and the Originatorsuch HBI Party;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany HBI Party, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-arm’s length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors or Managers consisting of at least three (3) members, at least one (1) member of which is an Independent DirectorDirector or Manager, as applicable;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the Originator any HBI Party and otherwise readily identifiable as its own assets rather than assets of the Originatorany HBI Party;
(I) prepare its financial statements, if any, statements separately from those of the Originator and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof HBI Party that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any HBI Party and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator thereunder for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Limited Liability Company Agreement in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Committed Purchasers;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Kxxxxxxx & Xxxxxxxx LLP Exxxx LLP, as counsel for Seller Seller, in connection with the closing or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from Servicer, the OriginatorOriginators and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementClosing Date, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Purchaser Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof each Seller Party and not just a division of the Originatorany Seller Party. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shall:
will: (Ai) conduct its own business in its own name name; (ii) have a separate area from the Servicer and require that all full-time employees of Seller, if any, identify themselves each Originator for its business (which may be located at the same address as such entities) and not as employees of the Originator;
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts, for services provided to Seller by such employees, consultants and agents and, to the extent that any employeeother such entity has offices in the same location, consultant or agent there shall be a fair and appropriate allocation of Seller is also an employeeoverhead costs between them, consultant or agent of the Originator, allocate the compensation and each shall bear its fair share of such employee, consultant or agent between Seller and the Originator on expenses; (iii) have a basis that reflects the services rendered to Seller and the Originator;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, and, if any such office is located in the offices of the Originator, Seller shall lease such office at a fair market rent;
(D) if applicable, have separate stationery, invoices and checks stationery in its own name;
; (Eiv) conduct all transactions with the Originator each CNE Party and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) and their respective Affiliates strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any CNE Party or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the Originator and otherwise readily identifiable as its own assets rather than assets of the Originator;
(I) prepare its financial statements, if any, separately from those of the Originator and ensure that any consolidated financial statements of the Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes stating to the effect that Seller is a separate corporate entity and that its assets will be available to satisfy the claims of the creditors of Seller and of no other Person;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, from the Seller’s own assets (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Constellation Energy Generation LLC)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originator. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof and not just a division of the OriginatorOriginator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the OriginatorOriginator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the OriginatorOriginator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the OriginatorOriginator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, and, if offices and allocate to Seller on a reasonable basis the costs of any such office is located in the offices of space shared with the Originator, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (CB) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the OriginatorOriginator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents on behalf of the Purchasers hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i)7.10);
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Receivable Interest Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Receivable Interest Sale Agreement, to make payment to the Originator thereunder for the purchase of Receivables from the Originator under the Receivables Receivable Interest Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Organization Documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, this Section 6.1(i) of this Agreement7.10;
(N) maintain the effectiveness of, and continue to perform under the Receivables Receivable Interest Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Receivable Interest Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Receivable Interest Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing AgentFifth Third;
(O) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount adequate capital with which to conduct its business and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintainedmeet its obligations as they come due; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Bxxxxxxxx & Xxxxxxxx Gxxxxxxx LLP as counsel for the Seller Parties, in connection with the closing or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Ferrellgas Partners L P)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the OriginatorOriginator and CGSF. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator Originator, CGSF and any Affiliates thereof and not just a division of the OriginatorOriginator or CGSF. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shall:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the OriginatorOriginator or CGSF;
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the OriginatorOriginator or CGSF, allocate the compensation of such employee, consultant or agent between Seller and the Originator or CGSF, as applicable, on a basis that reflects the services rendered to Seller and the OriginatorOriginator or CGSF, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, and, if any such office is located in the offices of the OriginatorOriginator or CGSF, Seller shall lease such office at a fair market rent;
(D) if applicable, have separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator Originator, CGSF and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, for items shared between Seller and the Originator or CGSF on the basis of actual use to the extent practicable, if any, and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the Originator and CGSF and otherwise readily identifiable as its own assets rather than assets of the OriginatorOriginator or CGSF;
(I) prepare its financial statements, if any, separately from those of the Originator and CGSF and ensure that any consolidated financial statements of the Originator Originator, CGSF or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes stating to the effect that Seller is a separate corporate entity and that its assets will be available to satisfy the claims of the creditors of Seller and of no other Person;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator or CGSF and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, from the Seller’s own assets (except for certain payments by the Originator Originator, CGSF or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale AgreementAgreements; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale AgreementAgreements, to make payment to the Originator CGSF for the purchase of Receivables from the Originator CGSF under the Tier Two Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreements, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the either Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the either Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof Effective Date by Xxxxxxxx & Xxxxxxxx Bxxxxxx MxXxxxxxx LLP as counsel for Seller and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon SellerXxxxxx’s identity as a legal entity that is separate from the Originatoreach Xxxxxxxxx Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementMay 10, 2002, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Purchaser Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Xxxxxxxxx Entity and any Affiliates thereof and not just a division of the Originatorany Xxxxxxxxx Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Xxxxxxxxx Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Xxxxxxxxx Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Xxxxxxxxx Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Xxxxxxxxx Entity or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Xxxxxxxxx Entity or an Affiliate thereof, Seller shall will lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator each Xxxxxxxxx Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) and their respective Affiliates strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Xxxxxxxxx Entity or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Governors consisting of at least three members, at least one member of which is an Independent DirectorGovernor;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A1) the selection, maintenance or replacement of the Independent DirectorGovernor, (B2) the dissolution or liquidation of Seller or (C3) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Governors (including the Independent DirectorGovernor);
(H) maintain Seller’s books and records separate from those of the Originator each Xxxxxxxxx Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Xxxxxxxxx Entity and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Xxxxxxxxx Entity and ensure insure that any consolidated financial statements of the Originator any Xxxxxxxxx Entity or any Affiliate thereof that include Seller and Seller, including any that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Xxxxxxxxx Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or Servicer in the Collateral performance of its duties hereunder) is the account party and from which Seller alone (or Servicer in the performance of its duties hereunder or Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Xxxxxxxxx Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness Indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Originators thereunder for the purchase of Receivables from the Originator Originators under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents articles of organization and bylaws in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents articles of organization or bylaws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its articles of organization and bylaws, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to Agent of the replacement or appointment of any governor that is to serve as an Independent Governor for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Governor” and Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Governor”;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, the Performance Undertaking and the other Transaction Documents, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, the Performance Undertaking or any other Transaction Document, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement Agreement, the Performance Undertaking, or any other Transaction Document, or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
the Required Purchasers; (O) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Patterson Companies, Inc.)
Purchasers’ Reliance. The Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Seller’s 's identity as a legal entity that is separate from Xxxxxxxx, Hohe and other Affiliates of the OriginatorSeller. Therefore, from and after the date of execution and delivery of this Agreement, the Seller shall take all reasonable steps, steps including, without limitation, all steps that the Collateral Agent, any Managing Administrative Agent or any Purchaser may from time to time reasonably request, request to maintain the Seller’s 's identity as a separate legal entity and to make it manifest to third parties that the Seller is an entity with assets and liabilities distinct from those of the Originator and any its Affiliates thereof and not just a division of the Originatorany such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller shall:
(Ai) conduct its own business in its own name and require that all full-time employees of Seller, if any, the Seller identify themselves as such and not as employees of any of its Affiliates (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the OriginatorSeller's employees);
(Bii) if applicable, compensate all employees, consultants and agents directly, from the Seller’s 's bank accounts, for services provided to the Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Seller is also an employee, consultant or agent of an Affiliate of the OriginatorSeller, allocate the compensation of such employee, consultant or agent between the Seller and the Originator such Affiliate on a basis that which reflects the services rendered to the Seller and such Affiliate; provided, however, that the OriginatorSeller may enter into written agreements with any Affiliate which allow such Affiliate to pay any employee, consultant or agent on behalf of the Seller provided the Seller agrees to reimburse such Affiliate for its allocable share of such payment;
(CA) maintain office space separate and apart from that of any of its Affiliates (even if such office space is subleased from or is on or near premises occupied by any of its Affiliates), (B) clearly identify its offices (by signage or otherwise) as its offices, if any, and, if any such (C) own or lease pursuant to written leases all office is located in the offices of the Originator, Seller shall lease such office at a fair market rent;
furniture and equipment necessary to operate its business and (D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(Eiv) conduct all transactions with the Originator and the Servicer each of its Affiliates (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’sarm's-length basis, and allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between the Seller and the Originator such Affiliate on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(Fv) at all times have a Board of Directors consisting of at least three members, at least one member of which its Board of Directors and one officer who (A) meets the qualifications set forth in the Michigan Compiled Laws Annotated (S) 450.1107(3), as in effect on the date hereof, (B) is an Independent Directornot a customer or supplier of the Seller or any of its Affiliates and (C) is not a shareholder (whether direct, indirect or beneficial) holding more than 1% of the oustanding stock of any Affiliate;
(Gvi) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including Directors, and maintain the Independent Director);
(H) maintain Seller’s 's books and records separate from those of the Originator each of its Affiliates and otherwise readily identifiable as its own assets rather than assets of the Originatorany of its Affiliates;
(Ivii) prepare its financial statements, if any, statements separately from those of the Originator its Affiliates and ensure that any consolidated financial statements of the either Originator or any Affiliate thereof that include the Seller and have detailed notes clearly stating that are filed with the Securities and Exchange Commission or any other governmental agency have notes stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other Personthe Seller;
(Jviii) except as herein specifically otherwise provided, maintain the not commingle funds or other assets of the Seller separate from, with those of any of its Affiliates and not commingled with, those of the Originator and only maintain bank accounts or other depository accounts to which the Seller alone any of its Affiliates is the an account party, into which the Seller alone any of its Affiliates makes deposits and or from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) any of its Affiliates has the power to make withdrawals;
(Kix) not permit any of its Affiliates to pay all any of Seller’s its operating expenses, if any, from the Seller’s own assets expenses (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i5.1(k));
(Lx) operate refrain from paying dividends or making distributions, loans or other advances to any of its business Affiliates (except that, commencing after October 15, 1997, dividends which are duly authorized by its Board of Directors and activities are in compliance with applicable law may be payable no more than once each calendar year so long as (i) such that: it does not engage dividend is payable after October 15 of such year and (ii) no event has occurred and is continuing, or would result from such dividend, which constitutes a Servicer Default or Potential Servicer Default);
(xi) refrain from filing or otherwise initiating or supporting the filing of a motion in any business bankruptcy or activity other insolvency proceedings involving the Seller, Donnelly, Hohe, or any other Affiliate of Seller, to substantively consolidate the Seller with any such Affiliate;
(xii) refrain from (A) guaranteeing any obligation of any kind, or enter into of its Affiliates (B) having its obligations guaranteed by any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of businessits Affiliates, (2C) holding itself out as responsible for debts of any of its Affiliates or for the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment decisions or actions with respect to the Originator for the purchase affairs of Receivables from the Originator under the Receivables Sale Agreementany of its Affiliates, and (4D) being directly or indirectly named as a direct or contingent beneficiary or loss payee on any insurance policy covering the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions property of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintainedAffiliate; and
(Qxiii) maintain in place all policies and procedures, and take such other actions as are necessary on its part and continue to ensure that take all action, described in the facts and assumptions set forth in the opinion letter issued on the by Xxxxxx Xxxxxxxxx Xxxxxxx and Xxxxxxx LLP of even date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and the Originator herewith relating to true sale and substantive consolidation issues, and in the any certificates accompanying such opinion, remain true and correct in all material respects at all timesopinion letter.
Appears in 1 contract
Purchasers’ Reliance. The Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Seller’s identity as a separate legal entity that is separate from the Originator. Originator and GP, Inc. Therefore, from and after the date of execution and delivery of this Agreement, the Seller shall take all reasonable steps, steps including, without limitation, all steps that the Collateral Agent, Agent or any Managing Agent or any Purchaser may from time to time reasonably request, request to maintain the Seller’s identity as a separate legal entity and to make it manifest to third parties that the Seller is an entity with assets and liabilities distinct from those of the Originator and GP, Inc. and any Affiliates thereof and not just a division of the Originator. Originator or GP, Inc. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller shall:
(Ai) conduct its own business in its own name and require that all full-time employees of Seller, if any, the Seller identify themselves as such and not as employees of the OriginatorOriginator or GP, Inc. (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Seller’s employees);
(Bii) if applicable, compensate all employees, consultants and agents directly, from the Seller’s bank accounts, for services provided to the Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Seller is also an employee, consultant or agent of the OriginatorOriginator or GP, Inc., allocate the compensation of such employee, consultant or agent between the Seller and the Originator (or GP, Inc. as applicable) on a basis that which reflects the services rendered to the Seller and the OriginatorOriginator (or GP, Inc. as applicable);
(Ciii) clearly identify its offices (by signage or otherwise) as its officesoffices (and that of GP, if any, and, if any such office is located in the offices of Inc.);
(iv) have a separate telephone number from the Originator, Seller shall lease such office at a fair market rent;
which will be answered only in its name (Dor that of GP, Inc.) if applicable, have and separate stationery, invoices and checks in its own name;
(Ev) conduct all transactions with the Originator and the Servicer (includingGP, without limitation, any delegation of its obligations hereunder as Servicer) Inc. strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between the Seller and the Originator or GP, Inc. on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(Gvi) observe all organizational partnership formalities as a distinct entity, and ensure that all corporate or limited liability company partnership actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of GP, Inc. as its Board of Directors (including the Independent Director)sole general partner;
(Hvii) maintain the Seller’s books and records separate from those of the Originator and GP, Inc. and otherwise readily identifiable as its own assets rather than assets of the OriginatorOriginator or GP, Inc.;
(Iviii) prepare be capable of preparing its financial statements, if any, statements separately from those of the Originator and ensure GP, Inc. and insure that any consolidated financial statements of the Originator or any Affiliate thereof that include the Seller and have detailed notes clearly stating that are filed with the Securities and Exchange Commission or any other governmental agency have notes stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other Personits own creditors;
(Jix) except as herein specifically otherwise provided, maintain the not commingle funds or other assets of the Seller separate from, and not commingled with, with those of the Originator or GP, Inc. and only not maintain bank accounts or other depository accounts to which the Seller alone Originator or GP, Inc. is the an account party, into which the Seller alone Originator or GP, Inc. makes deposits and or from which the Seller alone (Originator or the Collateral Agent or Managing Agents hereunder) GP, Inc. has the power to make withdrawals;
(Kx) not permit the Originator or GP, Inc. to pay all any of the Seller’s operating expenses, if any, from the Seller’s own assets expenses (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i));
subparagraphs (Lii) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4v) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintainedabove); and
(Qxi) take not permit the Seller to be named as an insured on the insurance policy covering the property of the Originator or GP, Inc. or enter into an agreement with the holder of such other actions as are necessary on its part to ensure that the facts and assumptions set forth policy whereby in the opinion issued on event of a loss in connection with such property, proceeds are paid to the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all timesSeller.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Bon Ton Stores Inc)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s 's identity as a legal entity that is separate from the OriginatorOriginator and its Affiliates. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s 's identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof and not just a division of the OriginatorOriginator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(Ai) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the OriginatorOriginator or its Affiliates (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller's employees);
(Bii) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts's own funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the OriginatorOriginator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the OriginatorOriginator or such Affiliate, as applicable;
(Ciii) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the OriginatorOriginator or any of its Affiliates, Seller shall lease such office at a fair market rent;
(Div) if applicable, have separate stationery, invoices and checks in its own name;
(Ev) conduct all transactions with the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(Fvi) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(Gvii) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(Hviii) maintain Seller’s 's books and records separate from those of the Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the OriginatorOriginator and any Affiliate thereof;
(Iix) prepare its financial statements, if any, statements separately from those of the Originator or any Affiliate thereof and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(Jx) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(Kxi) pay all of Seller’s 's operating expenses, if any, expenses from the Seller’s 's own assets (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(Lxii) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and Agreement, the Receivables Sale AgreementAgreement and its Certificate of Incorporation; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this AgreementAgreement and the other Transaction Documents, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator thereunder for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(Mxiii) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(Nxiv) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(Oxv) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(Pxvi) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Qxvii) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Foley & Xxxxxxxx LLP Lardner, as counsel for Seller Seller, ix xxxnecxxxx xxth the closing or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (School Specialty Inc)
Purchasers’ Reliance. Seller acknowledges that the Administrative Agent, the Managing Agents and the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatorany other Person. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Administrative Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof each Related Entity and not just a division of the Originatorany Related Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Related Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Related Entity, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Related Entity, on a basis that reflects the services rendered to Seller and the Originatorsuch Related Entity;
(C) clearly identify its maintain separate offices (by signage or otherwise) as its offices, if any, and, if any such office is located in the offices of the Originatorany Related Entity, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, which will be answered only in its name and have separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator and the Servicer each Related Entity (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-arm’s length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Related Entity on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Managers consisting of at least three (3) members, at least one (1) member of which is an Independent DirectorManager;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent DirectorManager, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Managers (including the Independent DirectorManager);
(H) maintain Seller’s books and records separate from those of the Originator any Related Entity and otherwise readily identifiable as its own assets rather than assets of the Originatorany Related Entity;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Related Entity and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof Related Entity that include Seller and that are filed with the Securities and Exchange Commission SEC or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Related Entity and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller (and Servicer on its behalf) alone makes deposits and from which the Seller alone (or the Collateral Servicer on its behalf and Administrative Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Related Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: (i) it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement the Principal Transaction Documents and the Receivables Sale Agreementactivities incidental thereto; and (ii) does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, under the Fee Letter or as expressly contemplated hereby, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale AgreementAgreement and the Subordinated Note, to make payment to the Originator thereunder for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its operating agreement, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to the Administrative Agent of the replacement or appointment of any director that is to serve as an Independent Manager for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfies the criteria set forth in the definition herein of “Independent Manager”, and comply at all times with the terms of such organizational documents;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementPrincipal Transaction Documents to which it is a party (other than, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify with the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentapplicable L/C Issuer, a Letter of Credit or Letter of Credit Application);
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxx Xxxxx L.L.P., as counsel for Seller Seller, in connection with the closing or initial Credit Event under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Marathon Petroleum Corp)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s 's identity as a legal entity that is separate from PFG and the OriginatorOriginators. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s 's identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator PFG and any other Affiliates thereof and not just a division of the OriginatorPFG or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the OriginatorPFG or any Originator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller's employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts's own funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the OriginatorPFG or any other Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator PFG or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the OriginatorPFG or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the PFG or any Originator, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with PFG and each of the Originator and the Servicer Originators (including, without limitation, any delegation of its obligations hereunder as a Permitted Sub-Servicer) strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the PFG or such Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s 's books and records separate from those of the Originator PFG and any other Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the OriginatorPFG and any other Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of PFG and the Originator Originators and ensure insure that any consolidated financial statements of the Originator PFG or any other Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator PFG or any other Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s 's operating expenses, if any, expenses from the Seller’s 's own assets (except for certain payments by the Originator PFG or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the applicable Originator thereunder for the purchase of Receivables from the such Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale AgreementAgreement or the Undertaking, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Bass, Bxxxx & Xxxxxxxx LLP Sxxx PLC, as counsel for Seller Seller, in connection with the closing or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Performance Food Group Co)
Purchasers’ Reliance. Seller Finance Subsidiary acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s Finance Subsidiary's identity as a legal entity that is separate from the OriginatorAffinia Group and each Seller. Therefore, from and after the date of execution and delivery of this Agreement, Seller Finance Subsidiary shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s Finance Subsidiary's identity as a separate legal entity and to make it manifest to third parties that Seller Finance Subsidiary is an entity with assets and liabilities distinct from those of the Originator Affinia Group and each Seller and any Affiliates thereof and not just a division of the OriginatorAffinia Group or any Seller or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallFinance Subsidiary will:
(A) conduct its own business in its own name and require that all full-time employees of SellerFinance Subsidiary, if any, identify themselves as such and not as employees of the OriginatorAffinia Group or any Seller (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Finance Subsidiary's employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsFinance Subsidiary's own funds, for services provided to Seller Finance Subsidiary by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller Finance Subsidiary is also an employee, consultant or agent of the OriginatorAffinia Group or any Seller or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Finance Subsidiary on one hand and Affinia Group, such Seller and or such Affiliate, as applicable, on the Originator other hand, on a basis that reflects the services rendered to Finance Subsidiary and Affinia Group, such Seller and the Originatoror such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the OriginatorAffinia Group or any Seller, Seller Finance Subsidiary shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator Affinia Group, each Seller and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller Finance Subsidiary on one hand and Affinia Group and any Seller, on the Originator other hand, on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller Finance Subsidiary or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving SellerFinance Subsidiary, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s Finance Subsidiary's books and records separate from those of Affinia Group, the Originator Sellers and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the OriginatorAffinia Group, any Seller or any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of Affinia Group and the Originator Sellers and ensure insure that any consolidated financial statements of Affinia Group and the Originator Sellers or any Affiliate thereof that include Seller Finance Subsidiary and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller Finance Subsidiary is a separate corporate entity and that its assets will be are not available to satisfy the claims of the creditors of Seller the Affinia Group and of no other Personthe Sellers;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller Finance Subsidiary separate from, and not commingled with, those of the Originator Affinia Group, any Seller or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller Finance Subsidiary alone is the account party, into which the Seller Finance Subsidiary alone makes deposits and from which the Seller Finance Subsidiary alone (or the Collateral Agent or Managing Agents hereunderin accordance with this Agreement) has the power to make withdrawals;
(K) pay all of Seller’s Finance Subsidiary's operating expenses, if any, expenses from the Seller’s Finance Subsidiary's own assets (except for certain payments by Affinia Group or the Originator Seller or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(k));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than than
(1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Sellers thereunder for the purchase of Receivables from the Originator Sellers under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents certificate of formation or limited liability company agreement in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(k) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreement and the Performance Undertaking, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale AgreementAgreement or the Performance Undertaking, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or the Performance Undertaking or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount Minimum Net Worth as of the end of any Calculation Period (as defined in the Receivables Sale Agreement) to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP LLP, as counsel for Seller Finance Subsidiary, in connection with the closing or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Wix Filtration Media Specialists, Inc.)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s 's identity as a legal entity that is separate from the Originator. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, including all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s 's identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof and not just a division of the Originator. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shall:
(Ai) engage in only the acquisition, ownership, selling, reselling (under the circumstances contemplated by this Agreement) and pledging of the property acquired from the Originator pursuant to the Sale Agreement (including the ability to enter into a new installment contract with an Obligor pursuant to an Upgrade), and causing the issuance and sale of Purchaser Interests pursuant to this Agreement and the exercise of any powers permitted to corporations under the General Corporation Law of the State of Delaware, which are incidental to the foregoing or necessary to accomplish the foregoing;
(ii) maintain its books and records separate from the books and records of any other entity, and maintain separate bank accounts where no funds of the Seller shall be commingled with funds of any other entity;
(iii) keep in full effect its existence, rights and franchises as a corporation under the laws of the State of Delaware and obtain and preserve its qualification to do business as a foreign corporation in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement;
(iv) conduct its own business in from an office or office space separate from the offices of Originator and WorldMark and maintain a telephone number separate from those of Originator and WorldMark and operate its own name and require that all full-time employees business generally so as not to be substantively consolidated with any of Seller, if any, identify themselves as such and not as employees of the Originatorits Affiliates;
(Bv) if applicablenot own any subsidiary or lend or advance any moneys to or make an investment in, any Person, or make any capital expenditures;
(vi) not (1) dissolve or liquidate in whole or in part, commence any case, proceeding or other action under any existing or future bankruptcy, insolvency or similar law seeking to have an order for relief entered with respect to it, or seeking reorganization, arrangement, adjustment, wind-up, liquidation, dissolution, composition or other relief with respect to it or its debts, (2) seek appointment of a receiver, Paying Agent, custodian or other similar official for it or any part of its assets, (3) make a general assignment for the benefit of creditors (other than as contemplated herein), or (4) take any action in furtherance of, or consenting or acquiescing in, any of the foregoing;
(vii) not guarantee (directly or indirectly), endorse or otherwise become contingently liable (directly or indirectly) for the obligations of, or own or purchase any stock, obligations or securities of or any other interest in, or make any capital contribution to, any other Person;
(viii) not merge or consolidate with any other Person;
(ix) not engage in any other action that adversely affects whether the separate legal identity of the Originator will be respected, including holding itself out as being liable for the debts of any other party or acting other than in its corporate name and through its duly authorized officers or agents;
(x) not create, incur, assume, or in any manner become liable in respect of any indebtedness other than that contemplated herein or trade payables and expense accruals incurred in the ordinary course of business and which are incidental to its business purpose;
(xi) at all times have a Board of Directors of three to seven members, which consists of at least one director who is an Independent Director, and have at least one executive officer who is an Independent Officer; provided, however, that (a) such Independent Director may also be the Independent Officer and (b) such Independent Director and such Independent Officer may serve in similar capacities for other "special purpose entities" formed by Originator and its Affiliates; Seller's Certificate of Incorporation shall at all times provide that such Independent Director shall have a fiduciary duty to the Purchasers;
(xii) compensate all employees, consultants and agents directly, from Seller’s 's bank accounts, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originator, allocate the compensation of such employee, consultant or agent between Seller and the Originator on a basis that reflects the services rendered to Seller and the Originator;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, and, if any such office is located in the offices of the Originator, Seller shall lease such office at a fair market rent;
(D) if applicable, have separate stationery, invoices and checks in its own name;
(Exiii) conduct all transactions with the Originator and the Servicer (including, without limitation, including any delegation of its obligations hereunder as Servicer) strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, including telephone and other utility charges), if any, ) for items shared between Seller and the Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(Gxiv) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (Aa) the selection, maintenance or replacement of the Independent Director, (Bb) the dissolution or liquidation of Seller or (Cc) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the Originator and otherwise readily identifiable as its own assets rather than assets of the Originator;
(Ixv) prepare its financial statements, if any, statements separately from those of the Originator and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and will not be available to satisfy the claims of no other Personthe creditors of Originator;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(Kxvi) pay all of Seller’s 's operating expenses, if any, expenses from the Seller’s 's own assets (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(j));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement;
(Nxvii) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Qxviii) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxxxx and Xxxxxx as counsel for Seller Seller, in connection with the closing or initial purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Trendwest Resorts Inc)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the OriginatorOriginators. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the any Originator and any Affiliates thereof and not just a division of the Originatorany Originator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Originator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Originator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the such Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the Originatorsuch Originator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices by no later than thirty days following the date hereof and, if any such office is located in the offices of the any Originator, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name, in each case, by no later than thirty days following the date hereof;
(E) conduct all transactions with the each Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the any Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the each Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Originator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the each Originator and ensure insure that any consolidated financial statements of the any Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the any Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the any Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the applicable Originator thereunder for the purchase of Receivables from the each Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents company charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or Formation, as applicable, or its limited liability agreement, limited partnership agreement or By-Laws, as applicable, in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreement and the Performance Undertaking, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale AgreementAgreement or the Performance Undertaking, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or the Performance Undertaking or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Xxxxx & Xxxxxxxx LLP Xxxxxxxx, LLP, as counsel for Seller Seller, in connection with the closing or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s 's identity as a legal entity that is separate from each Originator and its other Affiliates (collectively, the Originator“Mxxxxxxx Group”). Therefore, from and after the date of execution and delivery of this Agreement, Therefore Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s 's identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of any member of the Originator and any Affiliates thereof Mxxxxxxx Group and not just a division of the Originatorany such member. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of any member of the OriginatorMxxxxxxx Group (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller's employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts's own funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of any member of the OriginatorMxxxxxxx Group, allocate the compensation of such employee, consultant or agent between Seller and the Originator members of the Mxxxxxxx Group on a basis that reflects the services rendered to Seller and the OriginatorMxxxxxxx Group;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of any member of the OriginatorMxxxxxxx Group, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with any member of the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) Mxxxxxxx Group strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and any member of the Originator Mxxxxxxx Group on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director. In the event the Seller intends to appoint a new Independent Director, the Seller shall provide written notice to the Agent not less than ten (10) days prior to the effective date of such appointment and shall certify that the designated Person satisfies the criteria set forth in the definition herein of “Independent Director.” Any such appointment of a new Independent Director by the Seller shall require written acknowledgement by the Agent that such Person conforms, to the reasonable satisfaction of the Agent, with the criteria set forth in the definition herein of “Independent Director” and is otherwise satisfactory to the Agent in its reasonable discretion;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s 's books and records separate from those of the Originator members of the Mxxxxxxx Group and otherwise readily identifiable as its own assets rather than assets of any member of the OriginatorMxxxxxxx Group;
(I) prepare its financial statements, if any, statements separately from those of the Originator Mxxxxxxx Group and ensure insure that any consolidated financial statements of Mxxxxxxx or the Originator or any Affiliate thereof Mxxxxxxx Group that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available have been pledged to satisfy the claims Agent for the benefit of the creditors of Seller and of no other PersonPurchasers hereunder;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of any member of the Originator Mxxxxxxx Group and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s 's operating expenses, if any, expenses from the Seller’s 's own assets (except for certain payments by the an Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Originators thereunder for the purchase of Receivables from the Originator Originators under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, this Section 6.1(i) of this Agreement7.1(i);
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreement and from and after the time, if any, when it is required to be delivered, the Performance Undertaking, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale AgreementAgreement or, when applicable, the Performance Undertaking, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or, when applicable, the Performance Undertaking or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the any true sale or non-consolidation opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and the Originator relating to substantive consolidation issuesdelivered in connection with a CP Renewal Event, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatoreach Xxxxxxxxx Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementClosing Date, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Purchaser Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Xxxxxxxxx Entity and any Affiliates thereof and not just a division of the Originatorany Xxxxxxxxx Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Xxxxxxxxx Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Xxxxxxxxx Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Xxxxxxxxx Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Xxxxxxxxx Entity or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Xxxxxxxxx Entity or an Affiliate thereof, Seller shall will lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator each Xxxxxxxxx Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) and their respective Affiliates strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Xxxxxxxxx Entity or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Governors consisting of at least three members, at least one member of which is an Independent DirectorGovernor;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A1) the selection, maintenance or replacement of the Independent DirectorGovernor, (B2) the dissolution or liquidation of Seller or (C3) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Governors (including the Independent DirectorGovernor);
(H) maintain Seller’s books and records separate from those of the Originator and otherwise readily identifiable as its own assets rather than assets of the Originator;
(I) prepare its financial statements, if any, separately from those of the Originator and ensure that any consolidated financial statements of the Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes stating to the effect that Seller is a separate corporate entity and that its assets will be available to satisfy the claims of the creditors of Seller and of no other Person;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, from the Seller’s own assets (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Patterson Companies, Inc.)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s 's identity as a legal entity that is separate from the Originator. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, including all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s 's identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the each Originator Party and any Affiliates thereof and not just a division of the Originatorany Originator Party. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shall:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Originator Party (including by means of providing appropriate employees with business or identification cards identifying such employees as Seller's employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts's own funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the OriginatorOriginator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator on a basis that reflects the services rendered to Seller and the Originator;or such Affiliate, as
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Originator Party, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have maintain a Board of Directors consisting of at least three members, at least one member of which is an Independent DirectorSpecial Member;
(G) observe all organizational company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent DirectorSpecial Member, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors members (including the Independent DirectorSpecial Member);
(H) maintain Seller’s 's books and records separate from those of the Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Originator Party;
(I) prepare its financial statements, if any, statements separately from those of the any Originator Party and ensure insure that any consolidated financial statements of the any Originator Party or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the each Originator Party and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Servicer or the Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, from the Seller’s own assets (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Each Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon such Seller’s identity as a legal entity that is separate from the OriginatorOriginators. Therefore, from and after June 30, 2000 (or, May 15, 2002, in the date case of execution and delivery of this AgreementDairy Group II), each Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain such Seller’s identity as a separate legal entity and to make it manifest to third parties that such Seller is an entity with assets and liabilities distinct from those of the Originator Originators and any Affiliates thereof and not just a division of the Originatoran Originator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, each Seller shallwill:
(A) conduct its own business in its own name and require that all full-time fulltime employees of such Seller, if any, identify themselves as such and not as employees of the Originatorany Originator or any Affiliate thereof (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as such Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from such Seller’s bank accountsown funds, for services provided to such Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of such Seller is also an employee, consultant or agent of the Originatorany Originator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between such Seller and the Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to such Seller and the Originatorsuch Originator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Originator or any Affiliate thereof, Seller shall lease such allocate fairly any overhead for shared office at a fair market rentspace;
(D) if applicablehave a separate telephone number or extension, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator Originators and the Servicer Servicers (including, without limitation, any delegation of its obligations hereunder as ServicerServicers) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between such Seller and the each Originator (or any Affiliate thereof) on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have as its general partner a Board of Directors consisting of at least three members, limited liability company having at least one member of which is an Independent DirectorManager;
(G) observe all organizational corporate and/or limited partnership formalities as a distinct entity, and ensure that all corporate or and/or limited liability company partnership actions relating to to
(A) the selection, maintenance or replacement of the Independent Directorgeneral partner, (B) the dissolution or liquidation of such Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director)Manager of the general partner;
(H) maintain such Seller’s books and records separate from those of the each Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorsuch Originator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the each Originator and ensure insure that any consolidated financial statements of the such Originator or any Affiliate thereof that include such Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that such Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other Personsuch Seller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of such Seller separate from, and not commingled with, those of the any Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the such Seller alone is the account party, into which the Seller alone makes deposits party and from which the such Seller alone (or the Collateral Agent or Managing Agents hereunder) has the sole power to make withdrawals;
(K) pay all of such Seller’s operating expenses, if any, expenses from the such Seller’s own assets (except for certain payments by the Originator Originators or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale AgreementAgreement to which it is a party (it being understood that Dairy Group and Dairy Group II may enter into the transactions contemplated by the respective Demand Notes); and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale AgreementAgreement to which it is a party, to make payment to the each Originator thereunder for the purchase of Receivables from the any Originator under the such Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents limited partnership agreement in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents limited partnership agreement in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its limited partnership agreement, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to the Agent of the replacement or appointment of any director that is to serve as an Independent Manager for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that the applicable Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Manager” and the Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Manager;”
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreement to which it is a party (and, in the case of Dairy Group and Dairy Group II, the respective Demand Notes), such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the such Receivables Sale AgreementAgreement or the Demand Notes, or give any consent, waiver, directive or approval thereunder under such Receivables Sale Agreement or the Demand Notes, or waive any default, action, omission or breach under the such Receivables Sale Agreement or under the Demand Notes, or otherwise grant any indulgence thereunderunder such Receivables Sale Agreement or the Demand Notes, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate limited partnership separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement to which it is a party) and refrain from making any dividend, distribution, redemption of capital stock or partnership interest or payment of any subordinated indebtedness which that would cause the such Required Capital Amount to cease to be so maintained; and;
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Xxxxxx, Xxxx & Xxxxxxxx LLP LLP, as counsel for Seller such Seller, in connection with this Agreement, dated as of the date hereof, and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s 's identity as a legal entity that is separate from the Weaxxxxxxxx xxd each other Originator. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s 's identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the each Originator and any its Affiliates thereof (other than General Partner) and not just a division of the Originatorsuch Originator or Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatoran Originator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller's employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts's own funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Originator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the such Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the Originatorsuch Originator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the any Originator, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the any Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the such Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) cause Seller's General Partner at all times to have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational legal formalities as a distinct entity, and ensure that all corporate or limited liability company partnership actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s 's books and records separate from those of the each Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the OriginatorSuch Originator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the each Originator and ensure insure that any consolidated financial statements of the such Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the each Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s 's operating expenses, if any, expenses from the Seller’s 's own assets (except for certain payments by the an Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the U.S. Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreementthe Transaction Documents, (3) the incurrence of obligations, as expressly contemplated in the U.S. Receivables Sale Agreement, to make payment to the each Originator thereunder for the purchase of Receivables from the such Originator under the U.S. Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents Organic Documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Organic Documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the U.S. Receivables Sale AgreementAgreement and the Performance Undertaking, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the U.S. Receivables Sale AgreementAgreement or the Performance Undertaking, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the U.S. Receivables Sale Agreement or the Performance Undertaking or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;; and
(P) maintain at all times the Required Capital Amount (as defined in the U.S. Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: u.s. Receivables Purchase Agreement (Weatherford International Inc /New/)
Purchasers’ Reliance. Each Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon such Seller’s identity as a legal entity that is separate from the OriginatorOriginators. Therefore, from and after June 30, 2000 (or, May 15, 2002, in the date case of execution and delivery of this AgreementDairy Group II), each Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain such Seller’s identity as a separate legal entity and to make it manifest to third parties that such Seller is an entity with assets and liabilities distinct from those of the Originator Originators and any Affiliates thereof and not just a division of the Originatoran Originator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, each Seller shallwill:
(A) conduct its own business in its own name and require that all full-time fulltime employees of such Seller, if any, identify themselves as such and not as employees of the Originatorany Originator or any Affiliate thereof (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as such Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from such Seller’s bank accountsown funds, for services provided to such Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of such Seller is also an employee, consultant or agent of the Originatorany Originator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between such Seller and the Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to such Seller and the Originatorsuch Originator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Originator or any Affiliate thereof, Seller shall lease such allocate fairly any overhead for shared office at a fair market rentspace;
(D) if applicablehave a separate telephone number or extension, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator Originators and the Servicer Servicers (including, without limitation, any delegation of its obligations hereunder as ServicerServicers) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between such Seller and the each Originator (or any Affiliate thereof) on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have as its general partner a Board of Directors consisting of at least three members, limited liability company having at least one member of which is an Independent DirectorManager;
(G) observe all organizational corporate and/or limited partnership formalities as a distinct entity, and ensure that all corporate or and/or limited liability company partnership actions relating to (A) the selection, maintenance or replacement of the Independent Directorgeneral partner, (B) the dissolution or liquidation of such Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director)Manager of the general partner;
(H) maintain such Seller’s books and records separate from those of the each Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorsuch Originator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the each Originator and ensure insure that any consolidated financial statements of the such Originator or any Affiliate thereof that include such Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that such Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other Personsuch Seller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of such Seller separate from, and not commingled with, those of the any Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the such Seller alone is the account party, into which the Seller alone makes deposits party and from which the such Seller alone (or the Collateral Agent or Managing Agents hereunder) has the sole power to make withdrawals;
(K) pay all of such Seller’s operating expenses, if any, expenses from the such Seller’s own assets (except for certain payments by the Originator Originators or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale AgreementAgreement to which it is a party (it being understood that Dairy Group and Dairy Group II may enter into the transactions contemplated by the respective Demand Notes); and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale AgreementAgreement to which it is a party, to make payment to the each Originator thereunder for the purchase of Receivables from the any Originator under the such Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents limited partnership agreement in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents limited partnership agreement in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its limited partnership agreement, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to the Agent of the replacement or appointment of any director that is to serve as an Independent Manager for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that the applicable Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Manager” and the Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Manager;”
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreement to which it is a party (and, in the case of Dairy Group and Dairy Group II, the respective Demand Notes), such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the such Receivables Sale AgreementAgreement or the Demand Notes, or give any consent, waiver, directive or approval thereunder under such Receivables Sale Agreement or the Demand Notes, or waive any default, action, omission or breach under the such Receivables Sale Agreement or under the Demand Notes, or otherwise grant any indulgence thereunderunder such Receivables Sale Agreement or the Demand Notes, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate limited partnership separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement to which it is a party) and refrain from making any dividend, distribution, redemption of capital stock or partnership interest or payment of any subordinated indebtedness which that would cause the such Required Capital Amount to cease to be so maintained; and;
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Xxxxxx, Xxxx & Xxxxxxxx LLP LLP, as counsel for Seller such Seller, in connection with this Agreement, dated as of the date hereof, and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. The Seller acknowledges that the Agents, the LC Issuer and the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Seller’s identity as a legal entity that is separate from each of the OriginatorOriginators, YRC Worldwide Inc. and all Affiliates of any of them. Therefore, from and after the date of execution and delivery of this Agreement, the Seller shall take all reasonable steps, steps including, without limitation, all steps that the Collateral Agent, any Managing Agent LC Issuer or any Purchaser Agent may from time to time reasonably request, request to maintain the Seller’s identity as a separate legal entity and to make it manifest to third parties that the Seller is an entity with assets and liabilities distinct from those of the Originator Originators and any Affiliates thereof and not just a division of one of the OriginatorOriginators. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller shall:
(Ai) conduct its own business in its own name and require that all full-time employees of the Seller, if any, identify themselves as such and not as employees of an Originator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the OriginatorSeller’s employees);
(Bii) if applicable, compensate all employees, consultants and agents directly, from the Seller’s bank accounts, for services provided to the Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Seller is also an employee, consultant or agent of the an Originator, allocate the compensation of such employee, consultant or agent between the Seller and the such Originator on a basis that which reflects the services rendered to the Seller and the such Originator;
(Ciii) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the an Originator, the Seller shall lease such office at a fair market rent;
(Div) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;; THIRD AMENDED AND RESTATED RPA
(Ev) conduct all transactions with the each Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between the Seller and the such Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(Fvi) at all times have a at least two members of its Board of Directors consisting (each, an “Independent Director”) who are not at such time, and have not have been at any time during the preceding five years (A) a director, officer, employee or Affiliate of YRC Worldwide Inc. or any of its subsidiaries or affiliates, or (B) the beneficial owner at least three members, the time of such individual’s appointment as an Independent Director or at least one member of which is any time thereafter while serving as an Independent Director, of five percent (5%) of the outstanding common shares of YRC Worldwide Inc. having general voting rights; provided, however, that a director who otherwise meets the description of Independent Director as set forth herein shall not be disqualified from serving as an Independent Director of the Seller if he or she is also a director of another corporation that is an Affiliate of YRC Worldwide Inc. with a certificate of incorporation substantially similar to the certificate of incorporation of the Seller;
(Gvii) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent DirectorDirectors, (B) the dissolution or liquidation of the Seller or (C) the initiation of, of participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving the Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent DirectorDirectors);
(Hviii) maintain the Seller’s books and records separate from those of the Originator Originators and otherwise readily identifiable as its own assets rather than assets of the an Originator;
(Iix) prepare its financial statements, if any, statements separately from those of the Originator Originators and ensure insure that any consolidated financial statements of the Originator Originators or any Affiliate thereof that include the Seller and that which are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to that the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other Personthe Seller;
(Jx) except as herein specifically otherwise provided, maintain the not commingle funds or other assets of the Seller separate from, and not commingled with, with those of the Originator Originators and only not maintain bank accounts or other depository accounts to which the Seller alone any Originator is the an account party, into which the Seller alone any Originator makes deposits and or from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) any Originator has the power to make withdrawals;; THIRD AMENDED AND RESTATED RPA
(Kxi) pay all its own expenses and debts out of its own funds, to the extent sufficient funds are lawfully available, and in any event, not permit any Originator to pay any of the Seller’s operating expenses, if any, from the Seller’s own assets expenses (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i)5.1(k) or to pay any debt of Seller);
(Lxii) operate its business and activities such that: it does not engage in any business or activity permit the Seller to be named as an insured on the insurance policy covering the property of any kind, Originator or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than an agreement with the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result holder of the endorsement of negotiable instruments for deposit or collection or similar transactions such policy whereby in the ordinary course event of businessa loss in connection with such property, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment proceeds are paid to the Originator for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintainedSeller; and
(Qxiii) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Fulbright & Xxxxxxxx LLP L.L.P., as counsel for Seller the Seller, in connection with the closing or initial Credit Event under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Each Seller Party acknowledges that the -------------------- Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s 's identity as a legal entity that is separate from the each Originator. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s 's identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Originator, or any Affiliates thereof and not just merely a division of the Originatorany Originator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shall:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the any Originator;
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s 's bank accounts, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Originator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the such Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the Originatorsuch Originator or Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, and if any, and, if any such office is located in the offices of the Originatorany Originator or any Affiliate thereof, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered in its own name, and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the each Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, for items shared between Seller and the Originator Originators on the basis of actual use to the extent practicable, if any, and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s 's books and records separate from those of the any Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the OriginatorOriginators and any Affiliates thereof;
(I) prepare its financial statements, if any, separately from those of the Originator Originators and ensure that any consolidated financial statements of the any Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes stating to the effect that Seller is a separate corporate entity and that its assets will be available to satisfy the claims of the creditors of Seller and of no other Person;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the any Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, from the Seller’s own assets (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Articles of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;; --------------
(NM) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(PN) maintain at all times the Required Capital Amount Tangible Net Worth greater than or equal to $10,000,000 and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease its Tangible Net Worth to be so maintainedless than $15,000,000; and
(QO) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Hunton & Xxxxxxxx LLP Xxxxxxxx, as counsel for Seller Seller, in connection with the closing or initial purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Owens & Minor Inc/Va/)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originator. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that any of the Collateral Agent, any Managing Agent or any Purchaser Agents may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof and not just a division of the OriginatorOriginator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the OriginatorOriginator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the OriginatorOriginator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the OriginatorOriginator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, and, if offices and allocate to Seller on a reasonable basis the costs of any such office is located in the offices of space shared with the Originator, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (CB) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the OriginatorOriginator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents on behalf of the Purchasers hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i)7.10);
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Receivable Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Receivable Sale Agreement, to make payment to the Originator thereunder for the purchase of Receivables from the Originator under the Receivables Receivable Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Organization Documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, this Section 6.1(i) of this Agreement7.10;
(N) maintain the effectiveness of, and continue to perform under the Receivables Receivable Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Receivable Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Receivable Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing AgentCo-Agents;
(O) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount adequate capital with which to conduct its business and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintainedmeet its obligations as they come due; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Xxxxxxxxx & Xxxxxxxx LLP as counsel for the Seller Parties, in connection with the closing or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Ferrellgas Partners Finance Corp)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the OriginatorServicer, each Originator and any of their respective Affiliates. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof other Person and not just a division of the OriginatorServicer, any Originator or any of their respective Affiliates. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany other Person (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the OriginatorServicer, any Originator or any other Person, allocate the compensation of such employee, consultant or agent between Seller and the Originator such other Person, as applicable, on a basis that reflects the services rendered to Seller and the Originatorsuch other Person, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany other Person, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) ), any Originator or any other Person strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator such other Person on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the Originator any other Person and otherwise readily identifiable as its own assets rather than assets of the OriginatorServicer, any Originator or any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Servicer, any Originator or any other Person and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof Person that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Servicer, any Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator Servicer or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Genlyte, as an Originator thereunder for the purchase of Receivables from the Originator Genlyte under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreement and any other Transaction Document to which it is a party, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale AgreementAgreement or any other Transaction Document to which it is a party, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or any other Transaction Document to which it is a party, or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Xxxxx, Xxxxxx & Xxxxxxxx LLP Park, LLP, as counsel for Seller Seller, in connection with the closing or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s 's identity as a legal entity that is separate from the Originator. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s 's identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof and not just a division of the OriginatorOriginator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the OriginatorOriginator or any Affiliate thereof (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller's employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts's own funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the OriginatorOriginator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the OriginatorOriginator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the OriginatorOriginator or any Affiliate thereof, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator and the Servicer and their respective Affiliates (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s 's books and records separate from those of the Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the OriginatorOriginator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone (or the Servicer in the performance of its duties hereunder) is the account party, into which the Seller alone (or the Servicer in the performance of its duties hereunder) makes deposits and from which the Seller alone ((or the Collateral Servicer in the performance of its duties hereunder) or the Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s 's operating expenses, if any, expenses from the Seller’s 's own assets (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator thereunder for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreement and the Performance Undertaking, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale AgreementAgreement or the Performance Undertaking, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or the Performance Undertaking or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Latham & Xxxxxxxx LLP Watkins, as counsel for Seller Seller, in connection with the closxxx xx inxxxxx Xncremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Ceridian Corp /De/)
Purchasers’ Reliance. The RPA Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the RPA Seller’s 's identity as a legal entity that is separate from the any Originator. Therefore, from and after the date of execution and delivery of this Agreement, the RPA Seller shall take all reasonable steps, including, without limitation, including all steps that the Collateral Agent, any Managing Investor Agent or any Purchaser may from time to time reasonably request, to maintain the RPA Seller’s 's identity as a separate legal entity and to make it manifest to third parties that the RPA Seller is an entity with assets and liabilities distinct from those of the any Originator and any Affiliates thereof and not just a division of the any Originator. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the RPA Seller shall:
(Ai) engage in only the acquisition, ownership, selling, reselling (under the circumstances contemplated by this Agreement) and pledging of the property acquired from TWRI pursuant to the Sale Agreement (including the ability to enter into a new Installment Sale Contract with an Obligor pursuant to an Upgrade), and causing the issuance and sale of Purchaser Interests pursuant to this Agreement and the exercise of any powers permitted to corporations under the General Corporation Law of the State of Delaware, which are incidental to the foregoing or necessary to accomplish the foregoing;
(ii) maintain its books and records separate from the books and records of any other entity, and maintain separate bank accounts where no funds of the RPA Seller shall be commingled with funds of any other entity;
(iii) keep in full effect its existence, rights and franchises as a corporation under the laws of the State of Delaware and obtain and preserve its qualification to do business as a foreign corporation in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement;
(iv) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees from an office or office space separate from the offices of the OriginatorOriginators and WorldMark and maintain a telephone number separate from those of the Originators and WorldMark and operate its business generally so as not to be substantively consolidated with any of its Affiliates;
(Bv) if applicablenot own any subsidiary or lend or advance any moneys to or make an investment in, any Person, or make any capital expenditures;
(vi) not (1) dissolve or liquidate in whole or in part, commence any case, proceeding or other action under any existing or future bankruptcy, insolvency or similar law seeking to have an order for relief entered with respect to it, or seeking reorganization, arrangement, adjustment, wind-up, liquidation, dissolution, composition or other relief with respect to it or its debts, (2) seek appointment of a receiver, Paying Agent, custodian or other similar official for it or any part of its assets, (3) make a general assignment for the benefit of creditors (other than as contemplated herein), or (4) take any action in furtherance of, or consenting or acquiescing in, any of the foregoing;
(vii) not guarantee (directly or indirectly), endorse or otherwise become contingently liable (directly or indirectly) for the obligations of, or own or purchase any stock, obligations or securities of or any other interest in, or make any capital contribution to, any other Person;
(viii) not merge or consolidate with any other Person;
(ix) not engage in any other action that adversely affects whether the separate legal identity of any Originator will be respected, including holding itself out as being liable for the debts of any other party or acting other than in its corporate name and through its duly authorized officers or agents;
(x) not create, incur, assume, or in any manner become liable in respect of any indebtedness other than that contemplated herein or trade payables and expense accruals incurred in the ordinary course of business and which are incidental to its business purpose;
(xi) at all times have a Board of Directors of three to seven members, which consists of at least one director who is an Independent Director, and have at least one executive officer who is an Independent Officer; provided, however, that (a) such Independent Director may also be the Independent Officer and (b) such Independent Director and such Independent Officer may serve in similar capacities for other "special purpose entities" formed by any Originator and its Affiliates; the RPA Seller's Certificate of Incorporation shall at all times provide that such Independent Director shall have a fiduciary duty to the Purchasers;
(xii) compensate all employees, consultants and agents directly, from the RPA Seller’s 's bank accounts, for services provided to the RPA Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of the RPA Seller is also an employee, consultant or agent of the any Originator, allocate the compensation of such employee, consultant or agent between the RPA Seller and the each such Originator on a basis that reflects the services rendered to the RPA Seller and the each Originator;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, and, if any such office is located in the offices of the Originator, Seller shall lease such office at a fair market rent;
(D) if applicable, have separate stationery, invoices and checks in its own name;
(Exiii) conduct all transactions with the each Originator and the Servicer (including, without limitation, including any delegation of its obligations hereunder as Servicer) strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, including telephone and other utility charges), if any, ) for items shared between the RPA Seller and the any Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(Gxiv) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of the RPA Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving the RPA Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the Originator and otherwise readily identifiable as its own assets rather than assets of the Originator;
(Ixv) prepare its financial statements, if any, statements separately from those of the Originator and ensure insure that any consolidated financial statements of the any Originator or any Affiliate thereof that include the RPA Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to that the effect that RPA Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of the RPA Seller and will not be available to satisfy the claims of no other Personthe creditors of such Originator;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(Kxvi) pay all of the RPA Seller’s 's operating expenses, if any, expenses from the RPA Seller’s 's own assets (except for certain payments by the Originator RSA Seller or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(j));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement;
(Nxvii) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Investor Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Qxviii) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxxxx and Xxxxxx as counsel for Seller the RPA Seller, in connection with the closing or initial purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Trendwest Resorts Inc)
Purchasers’ Reliance. Each Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon such Seller’s identity as a legal entity that is separate from the OriginatorOriginators. Therefore, from and after June 30, 2000 (or, May 15, 2002, in the date case of execution Dairy Group II and, March 30, 2004, in the case of WhiteWave and delivery March 29, 2010, in the case of this AgreementMorningstar Receivables), each Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain such Seller’s identity as a separate legal entity and to make it manifest to third parties that such Seller is an entity with assets and liabilities distinct from those of the Originator Originators and any Affiliates thereof and not just a division of the Originatoran Originator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, each Seller shallwill:
(A) conduct its own business in its own name and require that all full-time fulltime employees of such Seller, if any, identify themselves as such and not as employees of the Originatorany Originator or any Affiliate thereof (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as such Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from such Seller’s bank accountsown funds, for services provided to such Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of such Seller is also an employee, consultant or agent of the Originatorany Originator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between such Seller and the Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to such Seller and the Originatorsuch Originator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Originator or any Affiliate thereof, Seller shall lease such allocate fairly any overhead for shared office at a fair market rentspace;
(D) if applicablehave a separate telephone number or extension, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator Originators and the Servicer Servicers (including, without limitation, any delegation of its obligations hereunder as ServicerServicers) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between such Seller and the each Originator (or any Affiliate thereof) on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have as its general partner a Board of Directors consisting of at least three members, limited liability company having at least one member of which is an Independent DirectorManager;
(G) observe all organizational corporate and/or limited partnership formalities as a distinct entity, and ensure that all corporate or and/or limited liability company partnership actions relating to (A) the selection, maintenance or replacement of the Independent Directorgeneral partner, (B) the dissolution or liquidation of such Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director)Manager of the general partner;
(H) maintain such Seller’s books and records separate from those of the each Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorsuch Originator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the each Originator and ensure insure that any consolidated financial statements of the such Originator or any Affiliate thereof that include such Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that such Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other Personsuch Seller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of such Seller separate from, and not commingled with, those of the any Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the such Seller alone is the account party, into which the Seller alone makes deposits party and from which the such Seller alone (or the Collateral Agent or Managing Agents hereunder) has the sole power to make withdrawals;
(K) pay all of such Seller’s operating expenses, if any, expenses from the such Seller’s own assets (except for certain payments by the Originator Originators or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale AgreementAgreement to which it is a party (it being understood that Dairy Group, Dairy Group II, Morningstar Receivables and WhiteWave may enter into the transactions contemplated by the respective Demand Notes); and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale AgreementAgreement to which it is a party, to make payment to the each Originator thereunder for the purchase of Receivables from the any Originator under the such Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents limited partnership agreement in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents limited partnership agreement in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its limited partnership agreement, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to the Agent of the replacement or appointment of any director that is to serve as an Independent Manager for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that the applicable Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Manager” and the Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Manager;”
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreement to which it is a party (and, in the case of Dairy Group, Dairy Group II, Morningstar Receivables and WhiteWave, the respective Demand Notes), such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the such Receivables Sale AgreementAgreement or the Demand Notes, or give any consent, waiver, directive or approval thereunder under such Receivables Sale Agreement or the Demand Notes, or waive any default, action, omission or breach under the such Receivables Sale Agreement or under the Demand Notes, or otherwise grant any indulgence thereunderunder such Receivables Sale Agreement or the Demand Notes, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate limited partnership separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement to which it is a party) and refrain from making any dividend, distribution, redemption of capital stock or partnership interest or payment of any subordinated indebtedness which that would cause the such Required Capital Amount to cease to be so maintained; and;
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Xxxxx Xxxxxxx & Xxxxxxxx LLP Xxxx LLP, as counsel for Seller such Seller, in connection with the closing or initial Incremental Purchase or initial Reinvestment under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originator. Therefore, from and after the date of execution and delivery of this AgreementJune 28, 2001, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof and not just a division of the OriginatorOriginator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the OriginatorOriginator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the OriginatorOriginator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the OriginatorOriginator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originator, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator and Originator, the Servicer and any Affiliate thereof (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the OriginatorOriginator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator or any Affiliate thereof (other than any Excluded Receivables) and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator thereunder for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its corporate charter, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to the Administrative Agent of the replacement or appointment of any director that is to serve as an Independent Director for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that the Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Director” and the Administrative Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Director;”
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Squire, Xxxxxxx & Xxxxxxxx LLP Xxxxxxx L.L.P., as counsel for Seller Seller, in connection with this second amendment and restatement of the Originator Existing Agreement and relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatoreach Cardinal Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementJune 29, 2000, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Cardinal Entity and any Affiliates thereof and not just a division of the Originatorany Cardinal Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(Ai) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Cardinal Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(Bii) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Cardinal Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Cardinal Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Cardinal Entity or such Affiliate, as applicable;
(Ciii) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Cardinal Entity, Seller shall will lease such office at a fair market rent;
(Div) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(Ev) conduct all transactions with the Originator each Cardinal Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Cardinal Entity on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(Fvi) (A) at all times have a Board of Directors Managers consisting of at least three members, at least one member of which is an Independent DirectorManager reasonably acceptable to the Agent; provided that any Independent Manager that is employed by Global Securitization Services, LLC, Lord Securities Corporation or Amacar Group LLC for the purpose of providing director services to special purpose entities and that meets the other requirements of an Independent Manager set forth herein shall be deemed approved by the Agent and (B) not remove any Independent Manager or replace any Independent Manager (other than a replacement by an individual employed by Global Securitization Services, LLC, Lord Securities Corporation or Amacar Group LLC for the purpose of providing director services to special purpose entities and who otherwise meets the other requirements of an Independent Manager set forth herein; provided that written notice of the replacement of the current Independent Manager with an Independent Manager employed by one of the entities specifically referred to herein will be furnished to the Agent), in each case without the prior written consent of the Agent;
(Gvii) observe all organizational corporate formalities as a distinct entity, and ensure that (I) all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B1) the dissolution or liquidation of Seller or (C2) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Managers (including the Independent Director)Manager) and (II) all limited liability company actions relating to the selection, maintenance or replacement of the Independent Manager are duly authorized in compliance with Seller’s articles of organization and operating agreement;
(Hviii) maintain Seller’s books and records separate from those of the Originator each Cardinal Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Cardinal Entity and any Affiliate thereof;
(Iix) prepare its financial statements, if any, statements separately from those of the Originator each Cardinal Entity and ensure insure that any consolidated financial statements of the Originator any Cardinal Entity or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(Jx) except to the extent funds of Seller and Xxxxxxx and funds of Seller and Cardinal may be commingled in connection with the performance by Xxxxxxx and Cardinal of their respective servicing obligations hereunder as herein specifically otherwise providedServicer and Permitted Sub- Servicer, respectively, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Cardinal Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(Kxi) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Cardinal Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(Lxii) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement (it being understood that Seller may make the Demand Loans to Cardinal pursuant to and in accordance with the terms of the Cash Management Agreement); and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Xxxxxxx thereunder for the purchase of Receivables from the Originator Xxxxxxx under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(Mxiii) maintain its organizational documents limited liability company charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents articles of organization and operating agreement in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(Nxiv) maintain the effectiveness of, and continue to perform and require Xxxxxxx, the Originators and the Approved Sub-Originators to perform under the Receivables Sale Agreement, each Xxxxxxx RPA, each Sub-Originator Sale Agreement, the Cash Management Agreement and the Performance Guaranty, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, each Xxxxxxx RPA, each Sub-Originator Sale Agreement, the Cash Management Agreement or the Performance Guaranty, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement thereunder or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Financial Institutions;
(Oxv) maintain its corporate limited liability company separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(Pxvi) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or membership interest or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Qxvii) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller Seller, in connection with the closing the Existing Agreement or any amendment thereto and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Cardinal Health Inc)
Purchasers’ Reliance. The Seller acknowledges that the -------------------- Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Seller’s 's identity as a legal entity that is separate from the Originator. Therefore, from and after the date of execution and delivery of this Agreement, the Seller shall take all reasonable steps, steps including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, request to maintain the Seller’s 's identity as a separate legal entity and to make it manifest to third parties that the Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof and not just a division of the Originator. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller shall:
(Ai) conduct its own business in its own name and require that all full-time employees of the Seller, if any, identify themselves as such and not as employees of the OriginatorOriginator (including, without limitation, by means of providing such employees with business or identification cards identifying such employees as the Seller's employees);
(Bii) if applicable, compensate all employees, consultants and agents directly, from the Seller’s 's bank accounts, for services provided to the Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Seller is also an employee, consultant or agent of the Originator, allocate the compensation of such employee, consultant or agent between the Seller and the Originator on a basis that which reflects the services rendered to the Seller and the Originator;
(Ciii) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originator, the Seller shall lease such office at a fair market rent;
(Div) if applicable, have separate stationery, invoices and checks in its own name;
(Ev) conduct all transactions with the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on terms that are consistent with those that would be obtained by an unaffiliated entity on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between the Seller and the Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(Fvi) at all times have a Board of Directors consisting of at least three members, at least one member of which its Board of Directors (an "INDEPENDENT DIRECTOR") who is an Independent Director"INDEPENDENT" as provided in the Seller's Articles of Incorporation as in effect on the date hereof;
(Gvii) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of the Seller or (C) the initiation of, of participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving the Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(Hviii) maintain the Seller’s 's books and records separate from those of the Originator and otherwise readily identifiable as its own assets rather than assets of the Originator;
(Iix) prepare its financial statements, if any, separately statements separate from those of the Originator and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof that include the Seller and have detailed notes clearly stating that are filed with the Securities and Exchange Commission or any other governmental agency have notes stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other Personthe Seller;
(Jx) except as herein specifically otherwise provided, maintain the not commingle funds or other assets of the Seller separate from, and not commingled with, with those of the Originator and only not maintain bank accounts or other depository accounts to which the Seller alone Originator is the an account party, into which the Seller alone Originator makes deposits and or from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) Originator has the power to make withdrawals;withdrawals except in its capacity as Sub-Servicer; and
(Kxi) not permit the Originator to pay all any of Seller’s operating expenses, if any, from the Seller’s own assets 's operating expenses (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(iSECTION 5.1(K));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the OriginatorOriginator and CGSF. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator Originator, CGSF and any Affiliates thereof and not just a division of the OriginatorOriginator or CGSF. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shall:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the OriginatorOriginator or CGSF;
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the OriginatorOriginator or CGSF, allocate the compensation of such employee, consultant or agent between Seller and the Originator or CGSF, as applicable, on a basis that reflects the services rendered to Seller and the OriginatorOriginator or CGSF, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, and, if any such office is located in the offices of the OriginatorOriginator or CGSF, Seller shall lease such office at a fair market rent;
(D) if applicable, have separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator Originator, CGSF and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly Servicer)strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, for items shared between Seller and the Originator or CGSF on the basis of actual use to the extent practicable, if any, and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the Originator and CGSF and otherwise readily identifiable as its own assets rather than assets of the OriginatorOriginator or CGSF;
(I) prepare its financial statements, if any, separately from those of the Originator and CGSF and ensure that any consolidated financial statements of the Originator Originator, CGSF or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes stating to the effect that Seller is a separate corporate entity and that its assets will be available to satisfy the claims of the creditors of Seller and of no other Person;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator or CGSF and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, from the Seller’s own assets (except for certain payments by the Originator Originator, CGSF or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale AgreementAgreements; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale AgreementAgreements, to make payment to the Originator CGSF for the purchase of Receivables from the Originator CGSF under the Tier Two Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreements, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the either Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the either Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatoreach Xxxxxxxxx Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementMay 10, 2002, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Purchaser Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Xxxxxxxxx Entity and any Affiliates thereof and not just a division of the Originatorany Xxxxxxxxx Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Xxxxxxxxx Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Xxxxxxxxx Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Xxxxxxxxx Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Xxxxxxxxx Entity or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Xxxxxxxxx Entity or an Affiliate thereof, Seller shall will lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator each Xxxxxxxxx Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) and their respective Affiliates strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Xxxxxxxxx Entity or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Governors consisting of at least three members, at least one member of which is an Independent DirectorGovernor;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A1) the selection, maintenance or replacement of the Independent DirectorGovernor, (B2) the dissolution or liquidation of Seller or (C3) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Governors (including the Independent DirectorGovernor);
(H) maintain Seller’s books and records separate from those of the Originator each Xxxxxxxxx Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Xxxxxxxxx Entity and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Xxxxxxxxx Entity and ensure insure that any consolidated financial statements of the Originator any Xxxxxxxxx Entity or any Affiliate thereof that include Seller and Seller, including any that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Xxxxxxxxx Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or Servicer in the Collateral performance of its duties hereunder) is the account party and from which Seller alone (or Servicer in the performance of its duties hereunder or Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Xxxxxxxxx Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness Indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.,
Appears in 1 contract
Samples: Receivables Purchase Agreement (Patterson Companies, Inc.)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s Sxxxxx's identity as a legal entity that is separate from the Originator. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s 's identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof and not just a division of the OriginatorOriginator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the OriginatorOriginator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller's employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts's own funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the OriginatorOriginator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the OriginatorOriginator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originator, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s 's books and records separate from those of the Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the OriginatorOriginator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s 's operating expenses, if any, expenses from the Seller’s 's own assets (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator thereunder for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Sxxxxx Xxxxxx & Xxxxxxxx LLP Wxxxx, as counsel for Seller Seller, in connection with the closing or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the OriginatorOriginator and any Original Seller. Therefore, from and after the date of execution and delivery of this AgreementApril 4, 2000, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Administrative Agent, any Managing Agent the Agents or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator Originator, any Original Seller and any Affiliates thereof and not just a division of the Originator, any Original Seller or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the OriginatorOriginator or any Original Seller (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originator, any Original Seller or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator Originator, any Original Seller or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the Originator, such Original Seller or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the OriginatorOriginator or any Original Seller, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator Originator, any Original Seller and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator or any Original Seller on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) (1) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent DirectorDirector reasonably acceptable to each Agent (such acceptability of any Independent Director appointed after the date hereof must be evidenced in writing signed by 658652.06-Chicago Server 1A - MSW each Agent; provided that any Independent Director that has at least three (3) years of employment experience with one or more of AMACAR Group, L.L.C., Lord Securities Corporation, Global Securitization Services LLC or any other nationally recognized entity that provides, in the ordinary course of their respective businesses, advisory, management or placement services and independent director services to issuers of securitization or structured finance instruments, agreements or securities and that meets the other requirements of an Independent Director set forth herein shall be deemed acceptable to the Agents) and (2) at no time shall any of Seller, Servicer, Sub-Servicer, Provider, Originator, any Original Seller, any of Seller’s members or managing members or any of their respective Affiliates remove any Independent Director or replace any Independent Director (other than a replacement by an individual that has at least three (3) years of employment experience with one or more of AMACAR Group, L.L.C., Lord Securities Corporation, Global Securitization Services LLC or any other nationally recognized entity that provides, in the ordinary course of their respective businesses, advisory, management or placement services and independent director services to issuers of securitization or structured finance instruments, agreements or securities and that meets the other requirements of an Independent Director set forth herein), in each case without the prior written consent of each Agent;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the Originator Originator, any Original Seller and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originator, any Original Seller and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator and ensure any Original Seller and insure that any consolidated financial statements of the Originator Originator, any Original Seller or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator Originator, any Original Seller or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator Originator, any Original Seller or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator thereunder for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, the Transfer Agreement and the Performance Undertaking, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, the Transfer Agreement or the Performance Undertaking, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement, the Transfer Agreement or the Performance Undertaking or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Administrative Agent and each Managing Agentthe Agents;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion opinions issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxx Xxxx LLP, as counsel for Seller Seller, in connection with the Original Agreement, this Agreement or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinionopinions, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Energizer Holdings Inc)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatoreach Originating Entity. Therefore, from and after during the date of execution and delivery term of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Originating Entity and any Affiliates thereof and not just a division of the Originatorany such Originating Entity or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Originating Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Originating Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Originating Entity or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the Originatorsuch Originating Entity or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Originating Entity, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator and each Originating Entity, the Servicer and any Affiliate thereof (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Originating Entity or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the Originator each Originating Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Originating Entity or any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Originating Entity and ensure insure that any consolidated financial statements of the Originator any Originating Entity or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Originating Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Originating Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator thereunder for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its corporate charter, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to the Agent of the replacement or appointment of any director that is to serve as an Independent Director for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that the Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Director” and the Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Director;”
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or the Subsidiary RSA or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that (i) the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Squire, Xxxxxxx & Xxxxxxxx LLP Xxxxxxx L.L.P., as counsel for Seller Seller, in connection with the second amendment and restatement of the Originator Existing Agreement and relating to substantive consolidation issues, and in the certificates accompanying such opinion, and (ii) the facts and assumptions set forth in the opinion issued by Xxxxxxxxx & Xxxxxxx LLP, as counsel for Seller, in connection with the 10th amendment to the Existing Agreement and relating to substantive consolidation issues with respect to the Subsidiary Originator and Seller, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. The Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Seller’s 's identity as a separate legal entity that is separate from the OriginatorTransferor. Therefore, from and after the date of execution and delivery of this Agreement, the Seller shall take all reasonable steps, steps including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, request to maintain the Seller’s 's identity as a separate legal entity and to make it manifest to third parties that the Seller is an entity with assets and liabilities distinct from those of the Originator Transferor and any Affiliates thereof and not just a division of the OriginatorTransferor. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller shall:
(Ai) conduct its own business in its own name and require that all full-time employees of Seller, if any, the Seller identify themselves as such and not as employees of the OriginatorTransferor (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Seller's employees);
(Bii) if applicable, compensate all employees, consultants and agents directly, from the Seller’s 's bank accounts, for services provided to the Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Seller is also an employee, consultant or agent of the OriginatorTransferor, allocate the compensation of such employee, consultant or agent between the Seller and the Originator Transferor on a basis that which reflects the services rendered to the Seller and the OriginatorTransferor;
(Ciii) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the OriginatorTransferor, the Seller shall lease such office at a fair market rent;
(Div) if applicable, have a separate stationerytelephone number and separate stationary, invoices and checks in its own name;
(Ev) conduct all transactions with the Originator and the Servicer Transferor (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between the Seller and the Originator Transferor on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(Fvi) at all times have a Board of Directors consisting of at least three members, at least one member of which is its Board of Directors (an "Independent Director") who is not (A) a director, officer or employee of the Transferor or an Affiliate thereof, (B) a Person related to any officer or director of the Transferor, (C) a holder (directly or indirectly) of any securities of the Transferor, or (D) a Person related to a holder (directly or indirectly) of any voting securities of the Transferor; and promptly reimburse the Transferor in respect of any losses or expenses which are claimed by such Independent Director in his or her capacity as Independent Director and which are paid by the Transferor;
(Gvii) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of the Seller or (C) the initiation of, or participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving the Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(Hviii) maintain the Seller’s 's books and records separate from those of the Originator Transferor and otherwise readily identifiable as its own assets rather than assets of the OriginatorTransferor;
(Iix) prepare its financial statements, if any, statements separately from those of the Originator Transferor and ensure insure that any consolidated financial statements of the Originator Transferor or any Affiliate thereof that include Seller and have detailed notes clearly stating that are filed with the Securities and Exchange Commission or any other governmental agency have notes stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other Personthe Seller;
(Jx) except as herein specifically otherwise provided, maintain the not commingle funds or other assets of the Seller separate from, and not commingled with, with those of the Originator Transferor and only not maintain bank accounts or other depository accounts to which the Seller alone Transferor is the an account party, into which the Seller alone Transferor makes deposits and or from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) Transferor has the power to make withdrawals;
(Kxi) not permit the Transferor to pay all any of Seller’s operating expenses, if any, from the Seller’s own assets 's operating expenses (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i5.1(k));
(Lxii) operate its business and activities such that: it does not engage in any business or activity permit the Seller to be named as an insured on the insurance policy covering the property of any kind, the Transferor or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than an agreement with the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result holder of the endorsement of negotiable instruments for deposit or collection or similar transactions such policy whereby in the ordinary course event of businessa loss in connection with such property, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment proceeds are paid to the Originator for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintainedSeller; and
(Qxiii) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Bracewell & Xxxxxxxx LLP Patterson as counsel for Seller the Seller, in connection with txx cloxxxx xx xnitial purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. The Seller acknowledges that the Purchasers -------------------- are entering into the transactions contemplated by this Agreement in reliance upon the Seller’s 's identity as a legal entity that is separate from each of the OriginatorOriginators. Therefore, from and after the date of execution and delivery of this Agreement, the Seller shall take all reasonable steps, steps including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, request to maintain the Seller’s 's identity as a separate legal entity and to make it manifest to third parties that the Seller is an entity with assets and liabilities distinct from those of each of the Originator Originators and any Affiliates thereof and not just a division of the an Originator. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller shall:
(Ai) conduct maintain its own business in separate books and records and bank accounts;
(ii) at all times hold itself out to the public as a legal entity separate from the Servicer, the Originators, any Affiliates thereof or any other Person;
(iii) at all times have at least one member of its Board of Directors who is an Independent Director;
(iv) file its own name and require that all full-time employees of Sellertax returns, if any, identify themselves as such and not as employees of the Originator;
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts, for services provided to Seller by such employees, consultants and agents andmay be required under applicable law, to the extent not part of a consolidated group filing a consolidated return or returns, and pay any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originator, allocate the compensation of such employee, consultant or agent between Seller and the Originator on a basis that reflects the services rendered taxes so required to Seller and the Originatorbe paid under applicable law;
(Cv) clearly identify not commingle its offices assets with assets of any other Person (except as contemplated by signage or otherwise) as its offices, if any, and, if any such office is located in the offices of the Originator, Seller shall lease such office at a fair market rentTransaction Documents);
(Dvi) if applicable, have separate stationery, invoices and checks conduct its business in its own name;
(Evii) conduct all transactions with the Originator and the Servicer maintain separate financial statements;
(including, without limitation, any delegation viii) pay its own liabilities only out of its obligations hereunder as Servicerown funds;
(ix) strictly on maintain an arm’s-arm's length basis, allocate all overhead expenses relationship with its Affiliates;
(including, without limitation, telephone and other utility charges)x) pay the salaries of its own employees, if any, for items shared between Seller and the Originator on the basis of actual use to the extent practicable, if any, and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(Fxi) at all times have a Board not guarantee or become obligated for the debts of Directors consisting any other Person or hold out its credit as being available to satisfy the obligations of at least three members, at least one member of which is an Independent Directorothers;
(Gxii) observe all organizational formalities as a distinct entityallocate fairly and reasonably any overhead for shared office space;
(xiii) use separate stationery, invoices and ensure that all corporate checks;
(xiv) not pledge its assets for the benefit of any other Person or limited liability company actions relating to (A) the selection, maintenance make any loans or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent advances to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized Person (except as contemplated by unanimous vote the Transaction Documents);
(xv) correct any known misunderstanding regarding its separate identity;
(xvi) maintain adequate capital in light of its contemplated business purposes; and
(xvii) cause its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the Originator and otherwise readily identifiable as its own assets rather than assets of the Originator;
(I) prepare its financial statements, if any, separately from those of the Originator and ensure that any consolidated financial statements of the Originator to meet at least annually or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes stating to the effect that Seller is a separate corporate entity and that its assets will be available to satisfy the claims of the creditors of Seller and of no other Person;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, from the Seller’s own assets (except for certain payments by the Originator or other Persons act pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent and keep minutes of the Collateral Agent such meetings and each Managing Agentactions and observe all other Michigan corporate formalities;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivable Interest Purchase Agreement (Federal Mogul Corp)
Purchasers’ Reliance. Seller The Originator acknowledges that the Purchasers -------------------- providers of Permitted Financings are entering into the transactions contemplated by this Agreement such Permitted Financings in reliance upon Seller’s the Buyer's identity as a separate legal entity that is separate from the Originator. Therefore, from and after the date of execution and delivery of this Agreement, Seller the Originator shall take all reasonable steps, steps including, without limitation, all steps that the Collateral Agent, any Managing Agent Buyer or any Purchaser assignee of the Buyer may from time to time reasonably request, to maintain Seller’s the Buyer's identity as a separate legal entity and to make it manifest to third parties that Seller the Buyer is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof and not just a division of the Originator. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller the Originator shall:
(Ai) not hold itself out to third parties as liable for the debts of the Buyer nor purport to own the Receivables and other assets acquired by the Buyer;
(ii) cause all tax liabilities arising in connection with the transactions contemplated herein or otherwise to be allocated between the Originator and the Buyer on an arm's-length basis;
(iii) conduct its own business in its own name and require that all full-time employees of Seller, if any, the Originator identify themselves as such and not as employees of the OriginatorBuyer;
(Biv) if applicable, compensate all employees, consultants and agents directly, from Seller’s the Originator's bank accounts, for services provided to Seller the Originator by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller the Originator is also an employee, consultant or agent of the OriginatorBuyer, allocate the compensation of such employee, consultant or agent between Seller the Buyer and the Originator on a basis that which reflects the services rendered to Seller the Buyer and the Originator;
(Cv) clearly identify its offices (by signage or otherwise) as its offices, if any, and, if any such the Buyer's office is located in the offices of the Originator, Seller the Originator shall lease such office to the Buyer at a fair market rent;
(Dvi) if applicable, have separate stationery, invoices and checks in its the Originator's own name;
(Evii) conduct all transactions with the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly Buyer upon terms that are consistent with those that would be obtained by an unaffiliated entity on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller the Buyer and the Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(Gviii) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(Hix) maintain Seller’s its books and records separate from those of the Originator Buyer and otherwise readily identifiable as its own assets rather than assets of the OriginatorBuyer;
(Ix) prepare its financial statements, if any, separately statements separate from those of the Originator Buyer and ensure insure that any of its consolidated financial statements of the Originator or any Affiliate thereof that include Seller and the Buyer have detailed notes clearly stating that are filed with the Securities and Exchange Commission or any other governmental agency have notes stating to the effect that Seller Buyer is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other Personthe Buyer;
(Jxi) except as herein specifically otherwise provided, maintain the not commingle funds or other assets of Seller separate from, and not commingled with, the Originator with those of the Originator Buyer and only not maintain bank accounts or other depository accounts to which the Seller alone Buyer is the an account party, into which the Seller alone Buyer makes deposits and or from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) Buyer has the power to make withdrawals;withdrawals except in its capacity as Servicer; and
(Kxii) not permit the Buyer to pay all any of Seller’s the Originator's operating expenses, if any, from the Seller’s own assets expenses (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(iSECTION 4.1(H));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the OriginatorOriginator and any Original Seller. Therefore, from and after the date of execution and delivery of this AgreementApril 4, 2000, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Administrative Agent, any Managing Agent the Agents or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator Originator, any Original Seller and any Affiliates thereof and not just a division of the Originator, any Original Seller or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the OriginatorOriginator or any Original Seller (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originator, any Original Seller or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator Originator, any Original Seller or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the Originator, such Original Seller or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the OriginatorOriginator or any Original Seller, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator Originator, any Original Seller and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator or any Original Seller on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the Originator Originator, any Original Seller and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originator, any Original Seller and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator and ensure any Original Seller and insure that any consolidated financial statements of the Originator Originator, any Original Seller or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator Originator, any Original Seller or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator Originator, any Original Seller or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator thereunder for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, the Transfer Agreement and the Performance Undertaking, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, the Transfer Agreement or the Performance Undertaking, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement, the Transfer Agreement or the Performance Undertaking or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Administrative Agent and each Managing Agentthe Agents;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion opinions issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Bxxxx Xxxx LLP, as counsel for Seller Seller, in connection with the Original Agreement, this Agreement or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinionopinions, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Energizer Holdings Inc)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatoreach Xxxxxxxxx Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementClosing Date, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Purchaser Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Xxxxxxxxx Entity and any Affiliates thereof and not just a division of the Originatorany Xxxxxxxxx Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originator;any Xxxxxxxxx Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees); 32 742891150 18589498
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Xxxxxxxxx Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Xxxxxxxxx Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Xxxxxxxxx Entity or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Xxxxxxxxx Entity or an Affiliate thereof, Seller shall will lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator each Xxxxxxxxx Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) and their respective Affiliates strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Xxxxxxxxx Entity or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Governors consisting of at least three members, at least one member of which is an Independent DirectorGovernor;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A1) the selection, maintenance or replacement of the Independent DirectorGovernor, (B2) the dissolution or liquidation of Seller or (C3) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Governors (including the Independent DirectorGovernor);
(H) maintain Seller’s books and records separate from those of the Originator each Xxxxxxxxx Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Xxxxxxxxx Entity and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Xxxxxxxxx Entity and ensure insure that any consolidated financial statements of the Originator any Xxxxxxxxx Entity or any Affiliate thereof that include Seller and Seller, including any that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, 742891150 18589498 those of the Originator any Xxxxxxxxx Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or Servicer in the Collateral performance of its duties hereunder) is the account party and from which Seller alone (or Servicer in the performance of its duties hereunder or Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Xxxxxxxxx Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness Indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Originators thereunder for the purchase of Receivables from the Originator Originators under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents articles of organization and bylaws in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents articles of organization or bylaws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its articles of organization and bylaws, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to Agent of the replacement or appointment of any governor that is to serve as an Independent Governor for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Governor” and Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Governor”;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, the Performance Undertaking and the other Transaction Documents, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, the Performance Undertaking or any other Transaction Document, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement Agreement, the Performance Undertaking, or any other Transaction 742891150 18589498 Document, or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock membership units or payment of any subordinated indebtedness Indebtedness or other liabilities which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion opinions issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and Seller, in connection with the Originator Transaction Documents (as such opinions may be brought down or replaced from time to time), relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Patterson Companies, Inc.)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon SellerXxxxxx’s identity as a legal entity that is separate from the Originatoreach Xxxxxxxxx Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementMay 10, 2002, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Purchaser Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Xxxxxxxxx Entity and any Affiliates thereof and not just a division of the Originatorany Xxxxxxxxx Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Xxxxxxxxx Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Xxxxxxxxx Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Xxxxxxxxx Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Xxxxxxxxx Entity or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Xxxxxxxxx Entity or an Affiliate thereof, Seller shall will lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator each Xxxxxxxxx Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) and their respective Affiliates strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Xxxxxxxxx Entity or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Governors consisting of at least three members, at least one member of which is an Independent DirectorGovernor;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A1) the selection, maintenance or replacement of the Independent DirectorGovernor, (B2) the dissolution or liquidation of Seller or (C3) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Governors (including the Independent DirectorGovernor);
(H) maintain Seller’s books and records separate from those of the Originator each Xxxxxxxxx Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Xxxxxxxxx Entity and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Xxxxxxxxx Entity and ensure insure that any consolidated financial statements of the Originator any Xxxxxxxxx Entity or any Affiliate thereof that include Seller and Seller, including any that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Xxxxxxxxx Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or Servicer in the Collateral performance of its duties hereunder) is the account party and from which Seller alone (or Servicer in the performance of its duties hereunder or Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Xxxxxxxxx Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness Indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Originators thereunder for the purchase of Receivables from the Originator Originators under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents articles of organization and bylaws in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents articles of organization or bylaws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its articles of organization and bylaws, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to Agent of the replacement or appointment of any governor that is to serve as an Independent Governor for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Governor” and Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Governor”;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, the Performance Undertaking and the other Transaction Documents, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, the Performance Undertaking or any other Transaction Document, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement Agreement, the Performance Undertaking, or any other Transaction Document, or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock membership units or payment of any subordinated indebtedness Indebtedness or other liabilities which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion opinions issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and Seller, in connection with the Originator Transaction Documents (as such opinions may be brought down or replaced from time to time), relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Patterson Companies, Inc.)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s 's identity as a legal entity that is separate from the Originator. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s 's identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof and not just a division of the OriginatorOriginator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time full‑time employees of Seller, if any, identify themselves as such and not as employees of the OriginatorOriginator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller's employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts's own funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the OriginatorOriginator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the OriginatorOriginator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originator, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length arm's‑length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s 's books and records separate from those of the Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the OriginatorOriginator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s 's operating expenses, if any, expenses from the Seller’s 's own assets (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator thereunder for the purchase of Receivables from the Originator under the Receivables Sale Agreement, Agreement and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its corporate charter, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to the Agent of the replacement or appointment of any director that is to serve as an Independent Director for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that the Seller certify that the designated Person satisfied the criteria set forth in the definition herein of "Independent Director" and the Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of "Independent Director;"
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxx Xxxx LLP, as counsel for Seller Seller, in connection with the closing or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Graybar Electric Co Inc)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s 's identity as a legal entity that is separate from the ACL and each Originator. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s 's identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the ACL and each Originator and any Affiliates Affiliate of any thereof and is not just a division of the OriginatorACL, any Originator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(Ai) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the OriginatorACL or any Originator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller's employees);
(Bii) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts's own funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the OriginatorACL, any Originator or any Affiliate of any thereof, allocate the compensation of such employee, consultant or agent between Seller and the ACL, such Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the OriginatorACL, such Originator or such Affiliate, as applicable;
(Ciii) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the ACL or any Originator, Seller shall lease such office at a fair market rentrent (which rent shall include an allocation of utility and telephone responses reasonably related to actual use);
(Div) if applicable, have all of the Seller's business correspondence and other communication shall be conducted in Seller's own name and on its own separate stationery, invoices and checks in its own name;
(Ev) conduct all transactions with the ACL, each Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, for items shared between Seller and the ACL or such Originator on the basis of actual use to the extent practicable, if any, and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(Fvi) at all times have a Board of Directors consisting of at least not fewer than three or more than five members, at least one member of which is an Independent Director;
(Gvii) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(Hviii) maintain Seller’s 's books and records separate from those of the ACL, any Originator and any Affiliate of any thereof and otherwise readily identifiable as its own assets rather than assets of the OriginatorACL, any Originator or any Affiliate of any thereof;
(Iix) prepare its financial statements, if any, statements separately from those of the ACL or any Originator and ensure insure that any consolidated financial statements of the ACL, any Originator or any Affiliate of any thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(Jx) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the ACL, any Originator or any Affiliate of any thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawalswithdrawals or maintain or cause to be maintained at all times such books and records as would permit funds and other assets of Seller in accounts that also contain funds and assets of other to be readily identified and segregated;
(Kxi) pay all of Seller’s 's operating expenses, if any, expenses from the Seller’s 's own assets (except for certain payments by the ACL or an Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(Lxii) operate its business and activities such that: that it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the each Originator thereunder for the purchase of Receivables from the such Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(Mxiii) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(Nxiv) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(Oxv) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(Pxvi) maintain at all times a Tangible Net Worth at least equal to the Required Capital Amount Minimum Tangible Net Worth and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease its Tangible Net Worth to be so maintainedless than the Minimum Tangible Net Worth; and
(Qxvii) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Xxxxx & Xxxxxxxx LLP Xxxxxxx, as counsel for Seller Seller, in connection with the closing or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (American Commercial Lines LLC)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the each Originator. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any either Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the each Originator and any Affiliates thereof and not just a division of the Originatorany Originator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time full‑time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Originator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Originator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the such Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the Originatorsuch Originator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the any Originator, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the each Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length arm’s‑length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the such Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the each Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorsuch Originator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the each Originator and ensure insure that any consolidated financial statements of the Originator Anixter or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise providedprovided or in connection with collections in respect of Excluded Receivables, which Collections the Servicer has indicated are readily identifiable, maintain the funds or other assets of Seller separate from, and not commingled with, those of the any Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the any Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: that it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Originators thereunder for the purchase of Receivables from the Originator Originators under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its corporate charter, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to the Agent of the replacement or appointment of any director that is to serve as an Independent Director for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Director” and the Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Director;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder (including, without limitation, any consent, waiver, directive or approval in connection with any Transfer Agreement) or waive any default, action, omission or breach under the Receivables Sale Agreement or any Transfer Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion opinions issued on the date hereof by Xxxxxxxx Xxxxxx Xxxxxx LLP (f/k/a Xxxxxx Xxxxxx & Xxxxxxxx LLP Xxxxx), as counsel for Seller Seller, in connection with the closing hereunder and under the Originator Earlier Purchase Agreement and relating to substantive consolidation issues, and in the certificates accompanying such opinionopinions, remain true and correct in all material respects at all times, it being acknowledged that the assumption set forth in the ninth paragraph of Section 1 of the opinion dated October 3, 2002 to the extent it indicated that the Seller would not be consolidated with Anixter for financial reporting purposes, is no longer true.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Anixter International Inc)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon SellerXxxxxx’s identity as a legal entity that is separate from the Originatoreach Xxxxxxxxx Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementMay 10, 2002, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Purchaser Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Xxxxxxxxx Entity and any Affiliates thereof and not just a division of the Originatorany Xxxxxxxxx Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(Ai) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Xxxxxxxxx Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(Bii) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Xxxxxxxxx Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Xxxxxxxxx Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Xxxxxxxxx Entity or such Affiliate, as applicable;
(Ciii) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Xxxxxxxxx Entity or an Affiliate thereof, Seller shall will lease such office at a fair market rent;
(Div) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(Ev) conduct all transactions with the Originator each Xxxxxxxxx Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) and their respective Affiliates strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Xxxxxxxxx Entity or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(Fvi) at all times have a Board of Directors Governors consisting of at least three members, at least one member of which is an Independent DirectorGovernor;
(Gvii) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A1) the selection, maintenance or replacement of the Independent DirectorGovernor, (B2) the dissolution or liquidation of Seller or (C3) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Governors (including the Independent DirectorGovernor);
(Hviii) maintain Seller’s books and records separate from those of the Originator each Xxxxxxxxx Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Xxxxxxxxx Entity and any Affiliate thereof;
(Iix) prepare its financial statements, if any, statements separately from those of the Originator each Xxxxxxxxx Entity and ensure insure that any consolidated financial statements of the Originator any Xxxxxxxxx Entity or any Affiliate thereof that include Seller and Seller, including any that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(Jx) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Xxxxxxxxx Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or Servicer in the Collateral performance of its duties hereunder) is the account party and from which Seller alone (or Servicer in the performance of its duties hereunder or Agent or Managing Agents hereunder) has the power to make withdrawals;
(Kxi) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Xxxxxxxxx Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(Lxii) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement, the Fifth Third Assignment Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness Indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Originators thereunder for the purchase of Receivables from the Originator Originators under the Receivables Sale Agreement, (4) the incurrence of obligations, as expressly contemplated in the Fifth Third Assignment Agreement, to make payment to PDC Funding II thereunder for the purchase of Receivables from PDC Funding II under the Fifth Third Assignment Agreement, and (45) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(Mxiii) maintain its organizational documents articles of organization and bylaws in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents articles of organization or bylaws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its articles of organization and bylaws, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to Agent of the replacement or appointment of any governor that is to serve as an Independent Governor for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Governor” and Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Governor”;
(Nxiv) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, the Performance Undertaking and the other Transaction Documents, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, the Performance Undertaking or any other Transaction Document, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement Agreement, the Performance Undertaking, or any other Transaction Document, or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(Oxv) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(Pxvi) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock membership units or payment of any subordinated indebtedness Indebtedness or other liabilities which would cause the Required Capital Amount to cease to be so maintained; and
(Qxvii) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion opinions issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and Seller, in connection with the Originator Transaction Documents (as such opinions may be brought down or replaced from time to time), relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Patterson Companies, Inc.)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are -------------------- entering into the transactions contemplated by this Agreement in reliance upon Seller’s 's identity as a legal entity that is separate from the Originatorother Torchmark Entities. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s 's identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator other Torchmark Entities and any Affiliates thereof and not just a division of the Originatorany other Torchmark Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shall:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany other Torchmark Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller's employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s 's bank accounts, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatoranother Torchmark Entity, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Torchmark Entity on a basis that reflects the services rendered to Seller and the Originatorsuch Torchmark Entity;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Torchmark Entity, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) each other Torchmark Entity strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator each other Torchmark Entity on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three or more members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent DirectorDirector on its board of directors, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s 's books and records separate from those of the Originator each other Torchmark Entity and otherwise readily identifiable as its own assets rather than assets of the Originatorany other Torchmark Entity;
(I) prepare its financial statements, if any, statements separately from those of the Originator each other Torchmark Entity and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof Torchmark Entities that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any other Torchmark Entity and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s 's operating expenses, if any, expenses from the Seller’s 's own assets (except for certain payments by the Originator another Torchmark Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));; ---------------
(L) operate its business and activities such that: it does not engage in any business or activity of any kindind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator AIL thereunder for the purchase of Receivables from the Originator AIL under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its corporate charter and other organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this -------------- Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreement and each of the other Transaction Documents to which it is party, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale AgreementAgreement or any other Transaction Document (whether or not Seller is party thereto), or give or permit any consent, waiver, directive or approval thereunder or in respect thereof or waive any default, action, omission or breach under the Receivables Sale Agreement or any other Transaction Document or otherwise grant any indulgence thereunderthereunder or in respect thereof, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Xxxxxxx, Xxxxxx & Xxxxxxxx LLP Xxxx, P.C., as counsel for Seller Seller, in connection with the closing and the Originator initial purchase under this Agreement and relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the OriginatorProvider, Originator and each other Flowserve Entity. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof Flowserve Entities and not just a division of the Originatora Flowserve Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Flowserve Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Flowserve Entity, allocate the compensation of such employee, consultant or agent between Seller and the Originator each applicable Flowserve Entity, as applicable, on a basis that reflects the services rendered to Seller and the Originatorsuch Flowserve Entity, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Flowserve Entity, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator each Flowserve Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any such Flowserve Entity on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the Originator each Flowserve Entity thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Flowserve Entity;
(I) prepare its unaudited financial statements, if any, statements separately from those of the Originator any Flowserve Entity and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof Flowserve Entity that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except with respect to Collections deposited into a Collection Account and maintained in such Collection Account prior to the date upon which such Collections are remitted to the Securitization Banks and deposited in the Securitization Accounts in accordance with Section 7.1(j) or as herein specifically otherwise providedprovided herein, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Flowserve Entity and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunderor, subject to the terms of the Intercreditor Agreement, the Bank Group Agent) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Flowserve Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator thereunder for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreement and the Performance Undertaking, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale AgreementAgreement or the Performance Undertaking, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or the Performance Undertaking or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxxxx and Xxxxxx LLP, as counsel for Seller Seller, in connection with the closing or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the OriginatorOriginator and CGSF. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator Originator, CGSF and any Affiliates thereof and not just a division of the OriginatorOriginator or CGSF. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shall:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the OriginatorOriginator or CGSF;
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the OriginatorOriginator or CGSF, allocate the compensation of such employee, consultant or agent between Seller and the Originator or CGSF, as applicable, on a basis that reflects the services rendered to Seller and the OriginatorOriginator or CGSF, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, and, if any such office is located in the offices of the OriginatorOriginator or CGSF, Seller shall lease such office at a fair market rent;
(D) if applicable, have separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator Originator, CGSF and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, for items shared between Seller and the Originator or CGSF on the basis of actual use to the extent practicable, if any, and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the Originator and CGSF and otherwise readily identifiable as its own assets rather than assets of the OriginatorOriginator or CGSF;
(I) prepare its financial statements, if any, separately from those of the Originator and CGSF and ensure that any consolidated financial statements of the Originator Originator, CGSF or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes stating to the effect that Seller is a separate corporate entity and that its assets will be available to satisfy the claims of the creditors of Seller and of no other Person;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator or CGSF and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, from the Seller’s own assets (except for certain payments by the Originator Originator, CGSF or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale AgreementAgreements; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale AgreementAgreements, to make payment to the Originator CGSF for the purchase of Receivables from the Originator CGSF under the Tier Two Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreements, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the either Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the either Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof June 11, 2004 by Xxxxxxxx & Xxxxxxxx Xxxxxxx XxXxxxxxx LLP as counsel for Seller and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s 's identity as a legal entity that is separate from the Originatoreach Related Entity. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s 's identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof each Related Entity and not just a division of the Originatorany Related Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Related Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller's employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts's own funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Related Entity, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Related Entity, on a basis that reflects the services rendered to Seller and the Originatorsuch Related Entity;
(C) to the extent Seller maintains a separate office for the operation of its business, clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Related Entity, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator each Related Entity and the Servicer and their respective Affiliates (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Related Entity on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s 's books and records separate from those of the Originator each Related Entity and otherwise readily identifiable as its own assets rather than assets of the Originatorany Related Entity;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Related Entity and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof Related Entity that include Seller and Seller, including any that are filed with the Securities and Exchange Commission or any other governmental agency agency, have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Related Entity and only maintain bank accounts or other depository accounts to which the Seller alone (or the Servicer in the performance of its duties hereunder) is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Servicer in the performance of its duties hereunder or the Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s 's operating expenses, if any, expenses from the Seller’s 's own assets (except for certain payments by the Originator any Related Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator thereunder for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Articles of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Perkins Coie LLP, as counsel for Seller Seller, in connection with the closing or inixxxx Xxcremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Puget Sound Energy Inc)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the OriginatorOriginators. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the each Originator and any Affiliates thereof and not just a division of the Originatoreither Originator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time full‑time employees of Seller, if any, identify themselves as such and not as employees of the Originatoreither Originator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatoreither Originator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the such Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the Originatorsuch Originator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the either Originator, Seller shall lease such office at a fair market rentrent (which rent may be charged as a component of an administrative fee rather than separately billed);
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator Originators and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length arm’s‑length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the either Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s books and records separate from those of the each Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the OriginatorOriginators and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator Originators and ensure insure that any consolidated financial statements of the Originator Originators or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator Originators or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator Originators or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables SMC Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables SMC Sale Agreement, to make payment to the Originator Selling Subsidiary for the purchase of Receivables from the Originator Selling Subsidiary under the Receivables SMC Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents certificate or articles of incorporation or bylaws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables SMC Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables SMC Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables SMC Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(P) maintain at all times the Required Capital Amount (as defined in the SMC Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Xxxx & Xxxxxxxx LLP Xxxxx Professional Corporation, as counsel for Seller Seller, in connection with the closing or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Financing Agreement (Syncor International Corp /De/)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are --------------------- entering into the transactions contemplated by this Agreement in reliance upon Seller’s 's identity as a legal entity that is separate from each of the OriginatorOriginators. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s 's identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the each Originator and any Affiliates thereof and not just a division of the Originatoran Originator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Originator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller's employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts's own funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatoran Originator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the such Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the Originatorsuch Originator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the an Originator, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the each Originator and the Master Servicer (including, without limitation, any delegation of its obligations hereunder as Master Servicer) strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the such Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s 's books and records separate from those of the each Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatoran Originator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the each Originator and ensure insure that any consolidated financial statements of the any Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the any Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s 's operating expenses, if any, expenses from the Seller’s 's own assets (except for certain payments by the an Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the applicable Originator thereunder for the purchase of Receivables from the such Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreement and the Performance Undertaking, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale AgreementAgreement or the Performance Undertaking, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or the Performance Undertaking or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxx Xxxx LLP, as counsel for Seller Seller, in connection with the closing or initial Incremental Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Ralcorp Holdings Inc /Mo)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatoreach Xxxxxxxxx Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementClosing Date, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Purchaser Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Xxxxxxxxx Entity and any Affiliates thereof and not just a division of the Originatorany Xxxxxxxxx Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Xxxxxxxxx Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Xxxxxxxxx Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Xxxxxxxxx Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Xxxxxxxxx Entity or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Xxxxxxxxx Entity or an Affiliate thereof, Seller shall will lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator each Xxxxxxxxx Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) and their respective Affiliates strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Xxxxxxxxx Entity or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Governors consisting of at least three members, at least one member of which is an Independent DirectorGovernor;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A1) the selection, maintenance or replacement of the Independent DirectorGovernor, (B2) the dissolution or liquidation of Seller or (C3) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Governors (including the Independent DirectorGovernor);
(H) maintain Seller’s books and records separate from those of the Originator each Xxxxxxxxx Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Xxxxxxxxx Entity and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Xxxxxxxxx Entity and ensure insure that any consolidated financial statements of the Originator any Xxxxxxxxx Entity or any Affiliate thereof that include Seller and Seller, including any that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Xxxxxxxxx Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or Servicer in the Collateral performance of its duties hereunder) is the account party and from which Seller alone (or Servicer in the performance of its duties hereunder or Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Xxxxxxxxx Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness Indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Originators thereunder for the purchase of Receivables from the Originator Originators under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents articles of organization and bylaws in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents articles of organization or bylaws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
; and (2) its articles of organization and bylaws, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to Agent of the replacement or appointment of any governor that is to serve as an Independent Governor for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Governor” and Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Governor”; (N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, the Performance Undertaking and the other Transaction Documents, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, the Performance Undertaking or any other Transaction Document, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement Agreement, the Performance Undertaking, or any other Transaction Document, or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.Purchasers;
Appears in 1 contract
Samples: Receivables Purchase Agreement (Patterson Companies, Inc.)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon SellerXxxxxx’s identity as a legal entity that is separate from the Originatoreach Xxxxxxxxx Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementMay 10, 2002, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Purchaser Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Xxxxxxxxx Entity and any Affiliates thereof and not just a division of the Originatorany Xxxxxxxxx Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Xxxxxxxxx Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Xxxxxxxxx Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Xxxxxxxxx Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Xxxxxxxxx Entity or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Xxxxxxxxx Entity or an Affiliate thereof, Seller shall will lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator each Xxxxxxxxx Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) and their respective Affiliates strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Xxxxxxxxx Entity or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Governors consisting of at least three members, at least one member of which is an Independent DirectorGovernor;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A1) the selection, maintenance or replacement of the Independent DirectorGovernor, (B2) the dissolution or liquidation of Seller or (C3) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Governors (including the Independent DirectorGovernor);
(H) maintain Seller’s books and records separate from those of the Originator each Xxxxxxxxx Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Xxxxxxxxx Entity and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Xxxxxxxxx Entity and ensure insure that any consolidated financial statements of the Originator any Xxxxxxxxx Entity or any Affiliate thereof that include Seller and Seller, including any that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Xxxxxxxxx Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or Servicer in the Collateral performance of its duties hereunder) is the account party and from which Xxxxxx alone (or Servicer in the performance of its duties hereunder or Agent or Managing Agents hereunderxxxxxxxxx) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Xxxxxxxxx Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement, the Fifth Third Assignment Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness Indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Originators thereunder for the purchase of Receivables from the Originator Originators under the Receivables Sale Agreement, (4) the incurrence of obligations, as expressly contemplated in the Fifth Third Assignment Agreement, to make payment to PDC Funding II thereunder for the purchase of Receivables from PDC Funding II under the Fifth Third Assignment Agreement, and (45) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents articles of organization and bylaws in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents articles of organization or bylaws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its articles of organization and bylaws, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to Agent of the replacement or appointment of any governor that is to serve as an Independent Governor for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Governor” and Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Governor”;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, the Performance Undertaking and the other Transaction Documents, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, the Performance Undertaking or any other Transaction Document, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement Agreement, the Performance Undertaking, or any other Transaction Document, or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock membership units or payment of any subordinated indebtedness Indebtedness or other liabilities which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion opinions issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and Seller, in connection with the Originator Transaction Documents (as such opinions may be brought down or replaced from time to time), relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Patterson Companies, Inc.)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatoreach Xxxxxxxxx Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementApril 27, 2007, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Xxxxxxxxx Entity and any Affiliates thereof and not just a division of the Originatorany Xxxxxxxxx Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Xxxxxxxxx Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Xxxxxxxxx Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Xxxxxxxxx Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Xxxxxxxxx Entity or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Xxxxxxxxx Entity or an Affiliate thereof, Seller shall will lease such office at a fair market rent;; 742081002 11089703 24
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator each Xxxxxxxxx Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) and their respective Affiliates strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Xxxxxxxxx Entity or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Governors consisting of at least three members, at least one member of which is an Independent DirectorGovernor;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A1) the selection, maintenance or replacement of the Independent DirectorGovernor, (B2) the dissolution or liquidation of Seller or (C3) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Governors (including the Independent DirectorGovernor);
(H) maintain Seller’s books and records separate from those of the Originator each Xxxxxxxxx Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Xxxxxxxxx Entity and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Xxxxxxxxx Entity and ensure insure that any consolidated financial statements of the Originator any Xxxxxxxxx Entity or any Affiliate thereof that include Seller and Seller, including any that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Xxxxxxxxx Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or Servicer in the Collateral performance of its duties hereunder) is the account party and from which Seller alone (or Servicer in the performance of its duties hereunder or Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Xxxxxxxxx Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions 742081002 11089703 25 contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness Indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Originators thereunder for the purchase of Receivables from the Originator Originators under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents articles of organization and bylaws in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents articles of organization or bylaws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its articles of organization and bylaws, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to Agent of the replacement or appointment of any governor that is to serve as an Independent Governor for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Governor” and Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Governor”;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, the Performance Undertaking and the other Transaction Documents, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, the Performance Undertaking or any other Transaction Document, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement Agreement, the Performance Undertaking, or any other Transaction Document, or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock membership units or payment of any subordinated indebtedness Indebtedness or other 742081002 11089703 26 liabilities which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxxx and Xxxxxx, Professional Association, as counsel for Seller and the Originator Seller, dated April 27, 2007 (as such opinion may be brought down or replaced from time to time), relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Contract Purchase Agreement (Patterson Companies, Inc.)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon SellerXxxxxx’s identity as a legal entity that is separate from the Originatoreach Xxxxxxxxx Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementClosing Date, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Purchaser Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Xxxxxxxxx Entity and any Affiliates thereof and not just a division of the Originatorany Xxxxxxxxx Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany Xxxxxxxxx Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, 30 RECEIVABLES PURCHASE AGREEMENT consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Xxxxxxxxx Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Xxxxxxxxx Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Xxxxxxxxx Entity or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Xxxxxxxxx Entity or an Affiliate thereof, Seller shall will lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator each Xxxxxxxxx Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) and their respective Affiliates strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Xxxxxxxxx Entity or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Governors consisting of at least three members, at least one member of which is an Independent DirectorGovernor;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A1) the selection, maintenance or replacement of the Independent DirectorGovernor, (B2) the dissolution or liquidation of Seller or (C3) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Governors (including the Independent DirectorGovernor);
(H) maintain Seller’s books and records separate from those of the Originator each Xxxxxxxxx Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Xxxxxxxxx Entity and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Xxxxxxxxx Entity and ensure insure that any consolidated financial statements of the Originator any Xxxxxxxxx Entity or any Affiliate thereof that include Seller and Seller, including any that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any Xxxxxxxxx Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or Servicer in the Collateral performance of its 31 RECEIVABLES PURCHASE AGREEMENT duties hereunder) is the account party and from which Xxxxxx alone (or Servicer in the performance of its duties hereunder or Agent or Managing Agents hereunderxxxxxxxxx) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Xxxxxxxxx Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness Indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Originators thereunder for the purchase of Receivables from the Originator Originators under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents articles of organization and bylaws in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents articles of organization or bylaws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its articles of organization and bylaws, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to Agent of the replacement or appointment of any governor that is to serve as an Independent Governor for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Governor” and Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Governor”;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, the Performance Undertaking and the other Transaction Documents, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, the Performance Undertaking or any other Transaction Document, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement Agreement, the Performance Undertaking, or any other Transaction Document, or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;the Required Purchasers; 32 RECEIVABLES PURCHASE AGREEMENT
(O) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock membership units or payment of any subordinated indebtedness Indebtedness or other liabilities which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion opinions issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and Seller, in connection with the Originator Transaction Documents (as such opinions may be brought down or replaced from time to time), relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Patterson Companies, Inc.)
Purchasers’ Reliance. The Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Seller’s 's identity as a legal entity that is separate from the Originator. Therefore, from and after the date of execution and delivery of this Agreement, the Seller shall take all reasonable steps, steps including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, request to maintain the Seller’s 's identity as a separate legal entity and to make it manifest to third parties that the Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof and not just a division of the Originator. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller shall:
(Ai) conduct its own business in its own name and require that all full-time employees of the Seller, if any, identify themselves as such and not as employees of the OriginatorOriginator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Seller's employees);
(Bii) if applicable, compensate all employees, consultants and agents directly, from the Seller’s 's bank accounts, for services provided to the Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Seller is also an employee, consultant or agent of the Originator, allocate the compensation of such employee, consultant or agent between the Seller and the Originator on a basis that which reflects the services rendered to the Seller and the Originator;
(Ciii) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originator, the Seller shall lease such office at a fair market rent;
(Div) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(Ev) conduct all transactions with the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between the Seller and the Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(Fvi) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote two members of its Board of Directors (including the Independent Director);
(Heach, an "INDEPENDENT DIRECTOR") maintain Seller’s books and records separate from those of the Originator and otherwise readily identifiable as its own assets rather than assets of the Originator;
(I) prepare its financial statements, if any, separately from those of the Originator and ensure that any consolidated financial statements of the Originator or any Affiliate thereof that include Seller and that who are filed with the Securities and Exchange Commission or any other governmental agency have notes stating to the effect that Seller is a separate corporate entity and that its assets will be available to satisfy the claims of the creditors of Seller and of no other Person;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate fromnot at such time, and have not commingled with, those of the Originator and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, from the Seller’s own assets (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor have been at any time createduring the preceding five years (A) a director, haveofficer, acquireemployee or affiliate of Yellow Corporation or any of its subsidiaries or affiliates, maintain or hold (B) the beneficial owner at the time of such individual's appointment as an Independent Director or at any interest in any Subsidiary;
time thereafter while serving as an Independent Director, of five percent (P5%) maintain at all times of the Required Capital Amount and refrain from making any dividendoutstanding common shares of Yellow Corporation having general voting rights; PROVIDED, distributionHOWEVER, redemption that a director who otherwise meets the description of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions Independent Director as are necessary on its part to ensure that the facts and assumptions set forth in herein shall not be disqualified from serving as an Independent Director of the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.if he or she is also a
Appears in 1 contract
Samples: Purchase Agreement (Yellow Corp)
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s 's identity as a legal entity that is separate from the Originator. Therefore, from and after the date of execution and delivery of this AgreementJune 28, 2001, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s 's identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof and not just a division of the OriginatorOriginator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the OriginatorOriginator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller's employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts's own funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the OriginatorOriginator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator or such Affiliate, as applicable, on a basis that reflects the services rendered to Seller and the OriginatorOriginator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originator, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator and Originator, the Servicer and any Affiliate thereof (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s 's books and records separate from those of the Originator and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the OriginatorOriginator and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator or any Affiliate thereof (other than any Excluded Receivables) and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s 's operating expenses, if any, expenses from the Seller’s 's own assets (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator thereunder for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents corporate charter in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;.
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Xxxxxx, Xxxxxxx & Xxxxxxxx LLP Xxxxxxx, as counsel for Seller Seller, in connection with the closing or initial Incremental Purchase under the Original Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. The Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Seller’s identity as a legal entity that is separate from LKQ and any of its Affiliates (collectively, the Originator“LKQ Entities” and each a “LKQ Entity”). Therefore, from and after the date of execution and delivery of this Agreement, the Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Administrative Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain the Seller’s identity as a separate legal entity and to make it manifest to third parties that the Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof LKQ Entity and not just a division of the Originatorany LKQ Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller shallwill:
(Ai) conduct its own business in its own name and require that all full-time and part-time employees of the Seller, if any, identify themselves as such and not as employees of any LKQ Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the OriginatorSeller’s employees);
(Bii) if applicable, compensate all employees, consultants and agents directly, from the Seller’s bank accountsown funds, for services provided to the Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Seller is also an employee, consultant or agent of the Originatorany LKQ Entity, allocate the compensation of such employee, consultant or agent between the Seller and the Originator such LKQ Entity, as applicable, on a basis that reflects the services rendered to the Seller and the Originatorsuch LKQ Entity, as applicable;
(Ciii) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of a LKQ Entity, the Originator, Seller shall lease such office at a fair market rent;
(Div) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(Ev) conduct all transactions with the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) each LKQ Entity strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between the Seller and the Originator such LKQ Entity on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(Fvi) at all times have a Board of Directors consisting of at least three members, at least one member of which is an Independent Director;
(Gvii) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of the Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving the Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(Hviii) maintain the Seller’s books and records separate from those of the Originator any LKQ Entity and otherwise readily identifiable as its own assets rather than assets of the Originatorany LKQ Entity;
(Iix) prepare its financial statements, if any, statements separately from those of the Originator any LKQ Entity and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof LKQ Entity that include the Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to that the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other Personthe Seller;
(Jx) except as herein specifically otherwise provided, on and after October 1, 2012, maintain the funds or other assets of the Seller separate from, and not commingled with, those of the Originator any LKQ Entity and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Servicer or the Administrative Agent or Managing Agents hereunder) has the power to make withdrawals;
(Kxi) pay all of the Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator a LKQ Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(Lxii) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Originators thereunder for the purchase of Receivables from the Originator Originators under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(Mxiii) maintain its organizational documents company charter in conformity with this Agreement, such that (A) it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Formation or operating agreement in any respect that would materially impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (B) its operating agreement, at all times that this Agreement is in effect, provides for (1) not less than ten (10) days’ prior written notice to the Administrative Agent and each Managing Agent of the replacement or appointment of any manager that is to serve as an Independent Director for purposes of this Agreement, (2) the condition precedent to giving effect to such replacement or appointment that the Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Director” and (3) each Managing Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Director;”
(Nxiv) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, Agreement such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, Agreement or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(Oxv) maintain its corporate company separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(Pxvi) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Qxvii) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Xxxxxx Xxxxxxx & Xxxxxxxx LLP Xxxxxxx LLP, as counsel for Seller the Seller, on September 28, 2012 and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. The Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Seller’s identity as a legal entity that is separate from the Originator. Therefore, from and after the date of execution and delivery of this Agreement, the Seller shall take all reasonable steps, steps including, without limitation, all steps that the Collateral Administrative Agent, any Managing Agent . Co-Agents or any Purchaser may from time to time reasonably request, request to maintain the Seller’s identity as a separate legal entity and to make it manifest to third parties that the Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof and not just a division of the Originator. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller shall:
(Ai) conduct its own business in its own name and require that all full-time employees of the Seller, if any, identify themselves as such and not as employees of the OriginatorOriginator (including, without limitation, by means of providing such employees with business or identification cards identifying such employees as the Seller’s employees);
(Bii) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accounts, own funds for services provided to the Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Seller is also an employee, consultant or agent of the Originator, allocate the compensation of such employee, consultant or agent between the Seller and the Originator on a basis that which reflects the services rendered to the Seller and the Originator;
(Ciii) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originator, the Seller shall lease such office at a fair market rent;
(Div) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices stationery and checks in its own name;
(Ev) conduct all transactions with the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between the Seller and the Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(Fvi) at all times have a Board of Directors consisting of at least three members, at least one member of which its Board of Directors who is an “Independent Director;” as provided in the Seller’s restated certificate of incorporation as in effect on the date hereof
(Gvii) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of the Seller or (C) the initiation of, or participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving the Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(Hviii) maintain the Seller’s books and records as separate from those of the Originator and otherwise readily identifiable as its own assets rather than assets of the Originator;
(Iix) prepare its financial statements, if any, statements separately from those of the Originator and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof that include the Seller and have detailed notes clearly stating that are filed with the Securities and Exchange Commission or any other governmental agency have notes stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other Personthe Seller;
(Jx) except as herein specifically otherwise providedwith respect to funds deposited to, maintain or maintained in, the Depositary Account and except pursuant to the Cash Management Agreement, not commingle funds or other assets of the Seller separate from, and not commingled with, with those of the Originator and only not maintain bank accounts or other depository accounts to which the Seller alone Originator is the an account party, into which the Seller alone Originator makes deposits and or from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) Originator has the power to make withdrawals;
(Kxi) not permit the Originator to pay all any of the Seller’s operating expenses, if any, from the Seller’s own assets expenses (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(k));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Qxii) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP Xxxxx Day, as counsel for Seller the Seller, in connection with the closing or initial Purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Eastman Chemical Co)
Purchasers’ Reliance. Seller acknowledges that the Purchasers -------------------- are entering into the transactions contemplated by this Agreement in reliance upon Seller’s 's identity as a legal entity that is separate from the Originatorother Torchmark Entities. Therefore, from and after the date of execution and delivery of this Agreement, Seller shall take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s 's identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator other Torchmark Entities and any Affiliates thereof and not just a division of the Originatorany other Torchmark Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shall:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originatorany other Torchmark Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller's employees);
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s 's bank accounts, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatoranother Torchmark Entity, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Torchmark Entity on a basis that reflects the services rendered to Seller and the Originatorsuch Torchmark Entity;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Torchmark Entity, Seller shall lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) each other Torchmark Entity strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator each other Torchmark Entity on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of at least three or more members, at least one member of which is an Independent Director;
(G) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent DirectorDirector on its board of directors, (B) the dissolution or liquidation of Seller or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(H) maintain Seller’s 's books and records separate from those of the Originator each other Torchmark Entity and otherwise readily identifiable as its own assets rather than assets of the Originatorany other Torchmark Entity;
(I) prepare its financial statements, if any, statements separately from those of the Originator each other Torchmark Entity and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof Torchmark Entities that include Seller and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, those of the Originator any other Torchmark Entity and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s 's operating expenses, if any, expenses from the Seller’s 's own assets (except for certain payments by the Originator another Torchmark Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));; --------------
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator AIL thereunder for the purchase of Receivables from the Originator AIL under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its corporate charter and other organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents Certificate of Incorporation or By-laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement;; --------------
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale AgreementAgreement and each of the other Transaction Documents to which it is party, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale AgreementAgreement or any other Transaction Document (whether or not Seller is party thereto), or give or permit any consent, waiver, directive or approval thereunder or in respect thereof or waive any default, action, omission or breach under the Receivables Sale Agreement or any other Transaction Document or otherwise grant any indulgence thereunderthereunder or in respect thereof, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Xxxxxxx, Xxxxxx & Xxxxxxxx LLP Xxxx, P.C., as counsel for Seller Seller, in connection with the closing and the Originator initial purchase under this Agreement and relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originatoreach Xxxxxxxxx Entity and their respective Affiliates. Therefore, from and after the date of execution and delivery of this AgreementClosing Date, Seller shall will take all reasonable steps, including, without limitation, all steps that the Collateral Agent, any Managing Purchaser Agent or any Purchaser may from time to time reasonably request, to maintain Seller’s identity as a separate legal entity and to make it manifest to third parties that Seller is an entity with assets and liabilities distinct from those of the Originator each Xxxxxxxxx Entity and any Affiliates thereof and not just a division of the Originatorany Xxxxxxxxx Entity. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Seller shallwill:
(A) conduct its own business in its own name and require that all full-time employees of Seller, if any, identify themselves as such and not as employees of the Originator;any Xxxxxxxxx Entity (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as Seller’s employees); 32 742893773 18589498
(B) if applicable, compensate all employees, consultants and agents directly, from Seller’s bank accountsown funds, for services provided to Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of Seller is also an employee, consultant or agent of the Originatorany Xxxxxxxxx Entity or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between Seller and the Originator such Xxxxxxxxx Entity or such Affiliate, as applicable on a basis that reflects the services rendered to Seller and the Originatorsuch Xxxxxxxxx Entity or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originatorany Xxxxxxxxx Entity or an Affiliate thereof, Seller shall will lease such office at a fair market rent;
(D) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(E) conduct all transactions with the Originator each Xxxxxxxxx Entity and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) and their respective Affiliates strictly on an arm’s-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between Seller and the Originator any Xxxxxxxxx Entity or any Affiliate thereof on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors Governors consisting of at least three members, at least one member of which is an Independent DirectorGovernor;
(G) observe all organizational limited liability company formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A1) the selection, maintenance or replacement of the Independent DirectorGovernor, (B2) the dissolution or liquidation of Seller or (C3) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving Seller, are duly authorized by unanimous vote of its Board of Directors Governors (including the Independent DirectorGovernor);
(H) maintain Seller’s books and records separate from those of the Originator each Xxxxxxxxx Entity and any Affiliate thereof and otherwise readily identifiable as its own assets rather than assets of the Originatorany Xxxxxxxxx Entity and any Affiliate thereof;
(I) prepare its financial statements, if any, statements separately from those of the Originator each Xxxxxxxxx Entity and ensure insure that any consolidated financial statements of the Originator any Xxxxxxxxx Entity or any Affiliate thereof that include Seller and Seller, including any that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating to the effect that Seller is a separate corporate legal entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other PersonSeller;
(J) except as herein specifically otherwise provided, maintain the funds or other assets of Seller separate from, and not commingled with, 742893773 18589498 those of the Originator any Xxxxxxxxx Entity or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Seller alone is the account party, into which the Seller alone makes deposits and from which the Seller alone (or Servicer in the Collateral performance of its duties hereunder) is the account party and from which Seller alone (or Servicer in the performance of its duties hereunder or Agent or Managing Agents hereunder) has the power to make withdrawals;
(K) pay all of Seller’s operating expenses, if any, expenses from the Seller’s own assets (except for certain payments by the Originator any Xxxxxxxxx Entity or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(i7.1(i));
(L) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness Indebtedness or other liabilities, whether direct or contingent, other than (1) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator Originators thereunder for the purchase of Receivables from the Originator Originators under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents articles of organization and bylaws in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its organizational documents articles of organization or bylaws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i7.1(i) of this Agreement; and (2) its articles of organization and bylaws, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to Agent of the replacement or appointment of any governor that is to serve as an Independent Governor for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that Seller certify that the designated Person satisfied the criteria set forth in the definition herein of “Independent Governor” and Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of “Independent Governor”;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, the Performance Undertaking and the other Transaction Documents, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, the Performance Undertaking or any other Transaction Document, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement Agreement, the Performance Undertaking, or any other Transaction 742893773 18589498 Document, or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agentthe Required Purchasers;
(O) maintain its corporate legal separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock membership units or payment of any subordinated indebtedness Indebtedness or other liabilities which would cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion opinions issued on the date hereof by Xxxxxxxx & Xxxxxxxx LLP as counsel for Seller and Seller, in connection with the Originator Transaction Documents (as such opinions may be brought down or replaced from time to time), relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
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Samples: Receivables Purchase Agreement (Patterson Companies, Inc.)
Purchasers’ Reliance. The Seller acknowledges that the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Seller’s 's identity as a legal entity that is separate from the Originator. Therefore, from and after the date of execution and delivery of this Agreement, the Seller shall take all reasonable steps, steps including, without limitation, all steps that the Collateral Agent, any Managing Agent or any Purchaser may from time to time reasonably request, request to maintain the Seller’s 's identity as a separate legal entity and to make it manifest to third parties that the Seller is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof and not just a division of the Originator. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller shall:
(Ai) conduct its own business in its own name and require that all full-time employees of the Seller, if any, identify themselves as such and not as employees of the OriginatorOriginator (including, without limitation, by means of providing such employees with business or identification cards identifying such employees as the Seller's employees);
(Bii) if applicable, compensate all employees, consultants and agents directly, from the Seller’s 's bank accounts, for services provided to the Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Seller is also an employee, consultant or agent of the Originator, allocate the compensation of such employee, consultant or agent between the Seller and the Originator on a basis that which reflects the services rendered to the Seller and the Originator;
(Ciii) clearly identify its offices (by signage or otherwise) as its offices, if any, offices and, if any such office is located in the offices of the Originator, the Seller shall lease such office at a fair market rent;
(Div) if applicablehave a separate telephone number, have which will be answered only in its name and separate stationery, invoices and checks in its own name;
(Ev) conduct all transactions with the Originator and the Servicer (including, without limitation, any delegation of its obligations hereunder as Servicer) strictly on an arm’sarm's-length basis, allocate all overhead expenses (including, without limitation, telephone and other utility charges), if any, ) for items shared between the Seller and the Originator on the basis of actual use to the extent practicable, if any, practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(Fvi) at all times have a Board of Directors consisting of at least three members, at least one member of which its Board of Directors (an "INDEPENDENT DIRECTOR") who is an Independent Director"INDEPENDENT" as provided in the Seller's Certificate of Incorporation as in effect on the date hereof;
(Gvii) observe all organizational corporate formalities as a distinct entity, and ensure that all corporate or limited liability company actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of the Seller or (C) the initiation of, of participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving the Seller, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(Hviii) maintain the Seller’s 's books and records separate from those of the Originator and otherwise readily identifiable as its own assets rather than assets of the Originator;
(Iix) prepare its financial statements, if any, separately statements separate from those of the Originator and ensure insure that any consolidated financial statements of the Originator or any Affiliate thereof that include the Seller and have detailed notes clearly stating that are filed with the Securities and Exchange Commission or any other governmental agency have notes stating to the effect that Seller is a separate corporate entity and that its assets will be available first and foremost to satisfy the claims of the creditors of Seller and of no other Personthe Seller;
(Jx) except as herein specifically otherwise provided, maintain the not commingle funds or other assets of the Seller separate from, and not commingled with, with those of the Originator and only not maintain bank accounts or other depository accounts to which the Seller alone Originator is the an account party, into which the Seller alone Originator makes deposits and or from which the Seller alone (or the Collateral Agent or Managing Agents hereunder) Originator has the power to make withdrawalswithdrawals except in its capacity as Sub-Servicer;
(Kxi) not permit the Originator to pay all any of Seller’s operating expenses, if any, from the Seller’s own assets 's operating expenses (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 6.1(iSECTION 5.1(K));
(Lxii) operate its business and activities such that: it does not engage in any business or activity permit the Seller to be named as an insured on the insurance policy covering the property of any kind, the Originator or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than an agreement with the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1) as a result holder of the endorsement of negotiable instruments for deposit or collection or similar transactions such policy whereby in the ordinary course event of businessa loss in connection with such property, (2) the incurrence of obligations under this Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment proceeds are paid to the Originator for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (4) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(M) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its organizational documents in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 6.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Collateral Agent and each Managing Agent;
(O) maintain its corporate separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the Required Capital Amount and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintainedSeller; and
(Qxiii) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued on the date hereof by Xxxxxxxx Alstxx & Xxxxxxxx LLP Bird, as counsel for Seller the Seller, in connection with the closing or initial purchase under this Agreement and the Originator relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
