Separate Corporate Existence. Each Transferor that is a securitization special purpose entity shall: (i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby. (ii) Except as provided in this Agreement, maintain its own deposit, securities and other account or accounts, separate from those of any Affiliate of such Transferor, with financial institutions. The funds of such Transferor will not be diverted to any other Person or for other than the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Person. (iii) Ensure that, to the extent that it shares the same officers or other employees as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees. (iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs. (v) Ensure that all material transactions between such Transferor and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties. (vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses. (vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually. (viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing). (ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor. (x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity. (xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor. (xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds. (xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person. (xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate. (xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 8 contracts
Samples: Third Amended and Restated Transfer Agreement, Transfer Agreement (American Express Receivables Financing Corp VIII LLC), Transfer Agreement (American Express Receivables Financing Corp VIII LLC)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Seller shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement each Transaction Document and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain Maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such Transferorits Affiliates, with financial commercial banking institutions. The funds of such Transferor the Seller will not be diverted to any other Person or for other than the company corporate use of such Transferor, the Seller and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor the Seller shall not be commingled with those of any other Personof its Affiliates.
(iii) Ensure that, to the extent that it shares the same officers or other employees as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Seller contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among the Seller and such entities for whose benefit the goods and services are provided, and the Seller and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor the Seller and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members stockholders and other Affiliates. To the extent that such Transferor and any At all times have a Board of its members or other Affiliates have offices in contiguous spaceDirectors consisting of three members, there shall be fair and appropriate allocation at least one member of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenseswhich is an Independent Director.
(viiv) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special membersstockholders’ and directors’ meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular membersstockholders’ and directors’ meetings (or unanimous written consents in lieu thereof) shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ixvi) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor the Seller (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of such Transferorthe Seller) and shall not be dictated by an Affiliate of such Transferorthe Seller.
(xvii) Act solely in its own company corporate name and through its own authorized officers and agents, and no Affiliate of such Transferor the Seller shall be appointed to act as agent of such Transferorits agent, except as expressly contemplated by this Agreement. Such Transferor The Seller shall at all times use its own stationery and business forms and describe itself as a separate legal entitystationery.
(xiviii) Other than as provided in the relevant Revolving Credit Agreement, ensure Ensure that no Affiliate of such Transferor the Seller shall advance funds to the Seller, other than (i) capital contributions from ABDC, made to enable the Seller to pay the purchase price of Receivables or loan money to such Transferor(ii) as is otherwise provided herein or in any Transaction Document, and no Affiliate of such Transferor the Seller will otherwise supply funds to, or guaranty debts of, the Seller; provided that an Affiliate of such Transferorthe Seller may provide funds to the Seller in connection with the capitalization of the Seller, including the provision of capital necessary to assure that the Seller has “substantial assets” as described in Treasury Regulation Section 301.7701-2(d)(2).
(xiiix) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own fundsit.
(xiiix) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Personits Affiliates.
(xivxi) Ensure that any financial reports required of such Transferor the Seller shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the AffiliateAffiliates.
(xvxii) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation incorporation, the Transaction Documents and this Agreement.
(xiii) Take such action to ensure that: (A) the Seller is solvent, including, without limitation, that it has not been rendered insolvent by the actions contemplated by the Transaction Documents; (B) the Seller intends to and reasonably expects to survive as a stand-alone entity, independent of financial assistance of any entity not contemplated by the Transaction Documents; (C) the Seller shall at all times have its limited own telephone number separate from that of ABDC; (D) neither the assets nor the creditworthiness of the Seller is held out as being available for the payment of any liability company agreement of ABDC; (E) each of ABDC and the Seller operates as a separate legal entity and not as a division or department thereof; (F) the Seller does not engage in or expect to engage in business for which its certificate of incorporation remaining property represents an unreasonably small capitalization; and bylaws(G) the Seller does not intend to incur nor does it believe it will incur indebtedness that it will not be able to repay at its maturity.
Appears in 7 contracts
Samples: Receivables Purchase Agreement (Amerisourcebergen Corp), Receivables Purchase Agreement (Cencora, Inc.), Receivables Purchase Agreement (Amerisourcebergen Corp)
Separate Corporate Existence. Each Transferor of the Seller and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a securitization special purpose entity shalldivision of AFC or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order that:
(i) Maintain in full effect its existence, rights and franchises as The Seller will be a limited liability company under purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the laws Originator, entering into agreements for the servicing of the state of its formation or such Receivables, selling undivided interests in such Receivables and conducting such other activities as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement it deems necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.carry out its primary activities;
(ii) Except Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in this Agreementrespect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, maintain which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own deposit, securities separate mailing address and other account or accounts, separate stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of such Transferorthe Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, with financial institutions. The and funds or other assets of such Transferor the Seller will not be diverted to any other Person or for other than the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of the Originator or any other Person.
(iii) Ensure that, to the extent that it shares the same officers Affiliate thereof. The Seller shall not maintain joint bank accounts or other employees depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(ivServicer) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all material transactions between such Transferor and any of its Affiliates shall be only on an arm’s-length basis has independent access and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and pool any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not Seller’s funds at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member with any funds of the Originator or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.thereof;
(xii) Other The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.the Seller); and
(xiii) Not enter into The Seller will maintain arm’s length relationships with the Originator and any guaranty, Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise become liable, with respect furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold its assets or creditworthiness itself out as being available to be responsible for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect debts of the transactions between such Transferor other or the decisions or actions respecting the daily business and such Affiliate and also state that the assets of such Transferor are not available to pay creditors affairs of the Affiliateother.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 6 contracts
Samples: Receivables Purchase Agreement (KAR Auction Services, Inc.), Receivables Purchase Agreement (KAR Auction Services, Inc.), Receivables Purchase Agreement (KAR Auction Services, Inc.)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Club Trustee shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Club Trustee will not be diverted to any other Person or for other than trust or corporate uses of the company use of such TransferorClub Trustee, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Personapplicable.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders, beneficiaries or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts the Club Trustee and the Servicer (together with their respective stockholders or does Affiliates) do business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Club Trustee and any of its Affiliates shall be only on an arm’s-arms' length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor the Club Trustee and any of its members stockholders, beneficiaries or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement the Club Trust Agreement or its certificate amended and restated articles of incorporation and bylaws incorporation, as applicable, and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders', trustees' and directors’ ' meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 5 contracts
Samples: Indenture (Bluegreen Corp), Indenture (Bluegreen Corp), Indenture (Bluegreen Corp)
Separate Corporate Existence. Each Such Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreementherein, maintain its own deposit, securities and other account or accounts, separate from those of any Affiliate of such Transferor, with financial institutions. The funds of such Transferor will not be diverted to any other Person or for other than the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Person.
(iii) Ensure that, to the extent that it shares the same officers or other employees as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all material transactions between such Transferor and any of its Affiliates shall be only on an arm’sarm's-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ ' and directors’ ' meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ ' and directors’ ' meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “"Independent Director” " shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (American Express Receivables Financing Corp Iii LLC), Pooling and Servicing Agreement (American Express Credit Account Master Trust), Pooling and Servicing Agreement (American Express Credit Account Master Trust)
Separate Corporate Existence. Each Such Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreementherein, maintain its own deposit, securities and other account or accounts, separate from those of any Affiliate of such Transferor, with financial institutions. The funds of such Transferor will not be diverted to any other Person or for other than the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Person.
(iii) Ensure that, to the extent that it shares the same officers or other employees as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all material transactions between such Transferor and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (American Express Credit Account Master Trust), Pooling and Servicing Agreement (American Express Receivables Financing Corp Iv LLC), Pooling and Servicing Agreement (American Express Receivables Financing Corp Iv LLC)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Seller shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement each Transaction Document and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain Maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such Transferorits Affiliates, with financial commercial banking institutions. The funds of such Transferor the Seller will not be diverted to any other Person or for any use other than the company corporate use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, Seller and the funds of such Transferor the Seller shall not be commingled with those of any other Personof its Affiliates.
(iii) Ensure that, to the extent that it shares the same officers or other employees as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Seller contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among the Seller and such entities for whose benefit the goods and services are provided, and the Seller and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor the Seller and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain At all times have a principal executive and administrative office through Board of Directors consisting of three members, at least one member of which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expensesan Independent Director.
(viiv) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special membersstockholders’ and directors’ meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular membersstockholders’ and directors’ meetings (or unanimous written consents in lieu thereof) shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ixvi) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor the Seller (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of such Transferorthe Seller) and shall not be dictated by an Affiliate of such Transferorthe Seller.
(xvii) Act solely in its own company corporate name and through its own authorized officers and agents, and no Affiliate of such Transferor the Seller shall be appointed to act as agent of such Transferorits agent, except as expressly contemplated by this Agreement. Such Transferor The Seller shall at all times use its own stationery and business forms and describe itself as a separate legal entitystationery.
(xiviii) Other than as provided in the relevant Revolving Credit Agreement, ensure Ensure that no Affiliate of such Transferor the Seller shall advance funds to the Seller, other than (i) capital contributions from Schein, made to enable the Seller to pay the purchase price of Receivables or loan money to such Transferor(ii) as is otherwise provided herein or in any Transaction Document, and no Affiliate of such Transferor the Seller will otherwise supply funds to, or guaranty debts of such Transferorof, the Seller.
(xiiix) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own fundsit.
(xiiix) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Personits Affiliates.
(xivxi) Ensure that any financial reports required of such Transferor the Seller shall comply with generally accepted accounting principles GAAP and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the AffiliateAffiliates.
(xvxii) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation incorporation, the Transaction Documents and this Agreement.
(xiii) Take such action to ensure that: (A) the Seller is solvent, including, without limitation, that it has not been rendered insolvent by the actions contemplated by the Transaction Documents; (B) the Seller intends to and reasonably expects to survive as a stand-alone entity, independent of financial assistance of any entity not contemplated by the Transaction Documents; (C) the Seller shall at all times have its limited own telephone number separate from that of Schein; (D) neither the assets nor the creditworthiness of the Seller is held out as being available for the payment of any liability company agreement of Schein; (E) each of Schein and the Seller operates as a separate legal entity and not as a division or department thereof; (F) the Seller does not engage in or expect to engage in business for which its certificate of incorporation remaining property represents an unreasonably small capitalization; and bylaws(G) the Seller does not intend to incur nor does it believe it will incur indebtedness that it will not be able to repay at its maturity.
Appears in 4 contracts
Samples: Receivables Purchase Agreement (Henry Schein Inc), Receivables Purchase Agreement (Henry Schein Inc), Receivables Purchase Agreement (Henry Schein Inc)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Club Trustee shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Club Trustee will not be diverted to any other Person or for other than trust or corporate uses of the company use of such TransferorClub Trustee, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Personapplicable.
(iiiii) Ensure ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders, beneficiaries or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure ensure that, to the extent that it the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts the Club Trustee and the Servicer (together with their respective shareholders or does Affiliates) do business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Club Trustee and any of its Affiliates shall be only on an arm’s-arms’ length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To to the extent that such Transferor the Club Trustee and any of its members stockholders, beneficiaries or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement the Club Trust Agreement or its certificate amended and restated articles of incorporation and bylaws incorporation, as applicable, and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special membersshareholders’, trustees’ and directors’ meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 3 contracts
Samples: Indenture (Bluegreen Corp), Indenture (Bluegreen Corp), Indenture (Bluegreen Corp)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity Seller shall:: ----------------------------
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor Seller will not be diverted to any other Person or for other than the company use corporate uses of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other PersonSeller.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor Seller contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions (other than this Agreement and the Receivables Purchase Agreement) between such Transferor Seller and any of its Affiliates shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor Seller and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Spiegel Credit Corp Iii), Transfer and Servicing Agreement (Spiegel Master Trust), Transfer and Servicing Agreement (Spiegel Master Trust)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Seller shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Seller will not be diverted to any other Person or for other than corporate uses of the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other PersonSeller.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Seller contracts or does business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Seller and any of its Affiliates shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor Seller and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders, and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viiivi) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereofTake or refrain from taking, “Independent Director” shall mean any member as applicable, each of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided activities specified in the relevant Revolving Credit Agreement"non-substantive consolidation" opinion of Xxxxxx, ensure that no Affiliate of such Transferor shall advance funds or loan money to such TransferorXxxxx & Xxxxxxx LLP delivered on the Closing Date, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferorupon which the conclusions expressed therein are based.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 3 contracts
Samples: Receivables Purchase Agreement (Resource America Inc), Receivables Purchase Agreement (Fidelity Leasing Inc), Receivables Purchase Agreement (Fidelity Leasing Inc)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Club Trustee shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Club Trustee will not be diverted to any other Person or for other than trust or corporate uses of the company use of such TransferorClub Trustee, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Personapplicable.
(iiiii) Ensure ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders, beneficiaries or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure ensure that, to the extent that it the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts the Club Trustee and the Servicer (together with their respective stockholders or does Affiliates) do business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Club Trustee and any of its Affiliates shall be only on an arm’s-arms’ length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To to the extent that such Transferor the Club Trustee and any of its members stockholders, beneficiaries or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement the Club Trust Agreement or its certificate amended and restated articles of incorporation and bylaws incorporation, as applicable, and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special membersstockholders’, trustees’ and directors’ meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 3 contracts
Samples: Loan Sale and Servicing Agreement (Bluegreen Corp), Loan Sale and Servicing Agreement (Bluegreen Corp), Indenture (Bluegreen Corp)
Separate Corporate Existence. Each The Transferor that is a securitization special purpose entity shall:
: (i) Maintain maintain its corporate existence and remain in full effect its existence, rights and franchises as a limited liability company good standing under the laws of the state State of Delaware; (ii) observe all procedures required by its formation or as a corporation under certificate of formation, the Transferor LLC Agreement and the laws of the state State of Delaware; (iii) ensure that (x) the business and affairs of the Transferor are at all times managed by or under the direction of its incorporation Board of Directors, (y) its Board of Directors shall have duly authorized all corporate actions requiring such authorization and, (z) when necessary, the Transferor shall have obtained proper authorization for corporate action from its stockholder; (iv) at all times includes at least two Independent Managers (as such term is defined in the Transferor LLC Agreement); (v) maintain separate corporate records and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability books of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other account or accounts, separate from those of any Affiliate and keep correct and complete books and records of such Transferor, with financial institutions. The account and minutes of the meetings and other proceedings of its stockholder and Board of Directors; (vi) pay the fair market rent for any office space located in the office of any Affiliate and a fair share of any overhead costs; (vii) maintain separate bank accounts and books of account from those of its Affiliates and ensure that its funds of such Transferor will not and other assets shall at all times be diverted to any other Person or for other than the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, readily distinguishable from the funds and other assets of such Transferor shall its Affiliates and not be commingled with those of any other Person.
(iii) Ensure that, to the extent that it shares the same officers funds or other employees as any assets of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all material transactions between such Transferor and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
; (viii) Ensure pay from its own separate funds all material liabilities incurred by it, including material operating and administrative expenses; provided that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member the organizational expenses of the board Transferor and expenses relating to the preparation, negotiation, execution and delivery of directors the documentation with respect to the issuance of such Transferor the Securities or notes that is not and has not at any it may issue from time been (x) to time may be paid by an officer, agent, advisor, consultant, attorney, accountant, employee, member Affiliate. No general overhead or shareholder administrative expenses of any Affiliate of shall be charged or otherwise allocated to the Transferor unless such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity general overhead or (z) a member administrative expenses are directly attributable to services provided to or for the account of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Partners First Credit Card Master Trust), Pooling and Servicing Agreement (Partners First Receivables Funding Corp)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Club Trustee shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Club Trustee will not be diverted to any other Person or for other than trust or corporate uses of the company use of such TransferorClub Trustee, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Personapplicable.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members shareholders, beneficiaries or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it the Club Trustee and the Servicer (together with their respective shareholders or Affiliates) jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts the Club Trustee and the Servicer (together with their respective stockholders or does Affiliates) do business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Club Trustee and any of its Affiliates shall be only on an arm’s-arms’ length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor the Club Trustee and any of its members stockholders, beneficiaries or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement the Club Trust Agreement or its certificate amended and restated articles of incorporation and bylaws incorporation, as applicable, and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special membersstockholders’, trustees’ and directors’ meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 2 contracts
Samples: Indenture (Bluegreen Corp), Third Amended and Restated Indenture (Bluegreen Corp)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Club Trustee shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Club Trustee will not be diverted to any other Person or for other than trust or corporate uses of the company use of such TransferorClub Trustee, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Personapplicable.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders, beneficiaries or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts the Club Trustee and the Servicer (together with their respective stockholders or does Affiliates) do business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Club Trustee and any of its Affiliates shall be only on an arm’s-arms’ length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor the Club Trustee and any of its members stockholders, beneficiaries or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement the Club Trust Agreement or its certificate amended and restated articles of incorporation and bylaws incorporation, as applicable, and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special membersstockholders’, trustees’ and directors’ meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 2 contracts
Samples: Amended and Restated Indenture (Bluegreen Corp), Indenture (Bluegreen Corp)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Trust Depositor shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Trust Depositor will not be diverted to any other Person or for other than corporate uses of the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other PersonTrust Depositor.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Trust Depositor contracts or does business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Trust Depositor and any of its Affiliates shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor the Trust Depositor and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viiivi) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereofTake or refrain from taking, “Independent Director” shall mean any member as applicable, each of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided activities specified in the relevant Revolving Credit Agreement"substantive consolidation" opinion of Winston & Xxxxxx, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferordelivered on the Closing Date, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferorupon which the conclusions expressed therein are based.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Heller Funding Corp), Sale and Servicing Agreement (Heller Funding Corp Ii)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Club Trustee shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Club Trustee will not be diverted to any other Person or for other than trust or corporate uses of the company use of such TransferorClub Trustee, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Personapplicable.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders, beneficiaries or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts the Club Trustee and the Servicer (together with their respective stockholders or does Affiliates) do business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Club Trustee and any of its Affiliates shall be only on an arm’s-arms' length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor the Club Trustee and any of its members stockholders, beneficiaries or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement the Club Trust Agreement, the covenants set forth on Schedule VI hereto or its certificate Amended and Restated Articles of incorporation and bylaws Incorporation, as applicable, and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders', trustees' and directors’ ' meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Bluegreen Corp), Sale and Servicing Agreement (Bluegreen Corp)
Separate Corporate Existence. Each The Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to ensure that proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement or the Servicing Agreement, maintain its own deposit, securities and other account or accounts, separate from those of any Affiliate of such the Transferor, with financial institutions. The funds of such the Transferor will not be diverted to any other Person or for other than the company use of such TransferorPerson, and, except as may be expressly permitted by this Agreement Agreement, the Servicing Agreement, or the applicable Receivables Purchase Agreement, the funds of such the Transferor shall not be commingled with those of any other Person.
(iii) Ensure that, to the extent that it shares the same officers or other employees as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such the Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all material transactions between such the Transferor and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such the Transferor and any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of natural person who, for the board of directors of such Transferor that is not and five-year period prior to his or her appointment as Independent Director has not at any time been been, and during the continuation of his or her service as Independent Director is not: (x) an officeremployee, director, stockholder, partner, agent, consultant, advisor, consultant, attorney, accountant, employee, member accountant or shareholder officer of the Transferor or any Affiliate of its Affiliates (other than his or her service as an Independent Director or other similar capacity and/or Special Member of the Transferor or any of such Transferor which is not a special purpose entity, Affiliates); (y) a director customer or supplier of the Transferor or any Affiliate of such Transferor its Affiliates (other than an Independent Director provided by a corporate services company that provides independent director directors in the ordinary course of any Affiliate which is a special purpose entity its business); or (z) a any member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
a person described in clause (x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entityor (y).
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 2 contracts
Samples: Transfer Agreement (Dryrock Issuance Trust), Transfer Agreement (Dryrock Issuance Trust)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Trust Depositor shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Trust Depositor will not be diverted to any other Person or for other than corporate uses of the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other PersonTrust Depositor.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Trust Depositor contracts or does business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Trust Depositor and any of its Affiliates shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor the Trust Depositor and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viiivi) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereofTake or refrain from taking, “Independent Director” shall mean any member as applicable, each of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided activities specified in the relevant Revolving Credit Agreement"nonsubstantive consolidation" opinion of Winston & Xxxxxx, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferordelivered on the Closing Date, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferorupon which the conclusions expressed therein are based.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Newcourt Receivables Corp Ii), Pooling and Servicing Agreement (Newcourt Receivables Corp Ii)
Separate Corporate Existence. Each Transferor of the Seller and AFC hereby acknowledges that the Purchasers, the Insurer, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a securitization special purpose entity shalldivision of AFC or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order that:
(i) Maintain in full effect its existence, rights and franchises as The Seller will be a limited liability company under purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the laws Originator, entering into agreements for the servicing of the state of its formation or such Receivables, selling undivided interests in such Receivables and conducting such other activities as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement it deems necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.carry out its primary activities;
(ii) Except Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in this Agreementrespect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, maintain which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own deposit, securities separate mailing address and other account or accounts, separate stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of such Transferorthe Originator or ADESA which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, with financial institutions. The and funds or other assets of such Transferor the Seller will not be diverted to any other Person or for other than the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of the Originator or any other Person.
(iii) Ensure that, to the extent that it shares the same officers Affiliate thereof. The Seller shall not maintain joint bank accounts or other employees depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(ivServicer) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all material transactions between such Transferor and any of its Affiliates shall be only on an arm’s-length basis has independent access and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and pool any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not Seller’s funds at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member with any funds of the Originator or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.thereof;
(xii) Other The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.the Seller); and
(xiii) Not enter into The Seller will maintain arm’s length relationships with the Originator and any guaranty, Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise become liable, with respect furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold its assets or creditworthiness itself out as being available to be responsible for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect debts of the transactions between such Transferor other or the decisions or actions respecting the daily business and such Affiliate and also state that the assets of such Transferor are not available to pay creditors affairs of the Affiliateother.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (KAR Auction Services, Inc.), Receivables Purchase Agreement (Adesa Inc)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Club Trustee shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Club Trustee will not be diverted to any other Person or for other than trust or corporate uses of the company use of such TransferorClub Trustee, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Person.applicable;
(iiiii) Ensure ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders, beneficiaries or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.90
(iviii) Ensure ensure that, to the extent that it the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts the Club Trustee and the Servicer (together with their respective shareholders or does Affiliates) do business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Club Trustee and any of its Affiliates shall be only on an arm’s-arms’ length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.basis;
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To to the extent that such Transferor the Club Trustee and any of its members stockholders, beneficiaries or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.; and
(viiv) Conduct conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement the Club Trust Agreement or its certificate amended and restated articles of incorporation and bylaws incorporation, as applicable, and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special membersshareholders’, trustees’ and directors’ meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 2 contracts
Samples: Indenture (Bluegreen Vacations Holding Corp), Indenture (Bluegreen Vacations Corp)
Separate Corporate Existence. Each The Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial institutions. The commercial banking institutions and use its commercially reasonable efforts to ensure that the funds of such the Transferor will not be diverted to any other Person or for other than corporate uses of the company use of such Transferor, andTransferor and that, except as may be expressly permitted contemplated by this Agreement or the applicable Receivables Purchase Agreement, the Section 6.02(b) such funds of such Transferor shall will not be commingled with those the funds of any other Person.Seller or any Subsidiary or Affiliate of the Sellers;
(iiiii) Ensure that, to To the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, fairly allocate among such entities the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entitiesemployees, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.;
(iviii) Ensure that, to To the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, fairly allocate among such entities the costs incurred in so doing shall be allocated fairly among such entitiesdoing, and each such entity shall bear its fair share of such costs. To the extent that such the Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and or services are provided, and each such entity shall bear its fair share of such costs.;
(viv) Ensure that Enter into all material transactions between such the Transferor and any of its Affiliates shall be Affiliates, whether currently existing or hereafter entered into, only on an arm’s-arm’s length basis basis, it being understood and shall not be on terms more favorable to either party than agreed that the terms that would be found transactions contemplated in a similar transaction involving unrelated third parties.the Transaction Documents meet the requirements of this clause (iv);
(viv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number space separate from those the office space of its members the Sellers and other Affiliatesany Affiliates of the Sellers. To the extent that such the Transferor and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.;
(vi) Issue separate unaudited financial statements prepared not less frequently than quarterly and prepared in accordance with GAAP consistently applied;
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate articles of incorporation and bylaws and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special membersstockholders’ and directors’ meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.;
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member Not assume or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of guarantee any of the foregoing).liabilities of the Sellers or any Affiliate thereof;
(ix) Ensure Take, or refrain from taking, as the case may be, all other actions that decisions are necessary to be taken or not to be taken in order to ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct with respect to its business the Transferor and daily operations shall be independently made by (y) comply with those procedures described in such Transferor (although provisions which are applicable to the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.;
(x) Act solely in its own company name and through its own authorized officers and agentsTake such actions as are necessary to ensure that not less than one member of Transferor’s Board of Directors shall be an individual who (1) is not, and never has been, a direct, indirect or beneficial stockholder, officer, director, employee, affiliate, associate, material supplier or material customer of the Collection Agent or any of its Affiliates, and (2) has experience as an independent director for a corporation whose charter documents required the unanimous consent of all independent directors thereof before such corporation could consent to the institution of bankruptcy or insolvency proceeding against it or before it could file a petition seeking relief under any applicable federal or state law relating to bankruptcy or insolvency, and (3) has at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities (each, an the “Independent Director”). The certificate of incorporation of the Transferor shall provide that (i) at least one member of the Transferor’s Board of Directors shall be an Independent Director, (ii) at any time while this Agreement remains in effect or any Aggregate Unpaids remain outstanding, no Affiliate of such Transferor Person shall be appointed as a replacement Independent Director without at least 10 days’ prior written notice of the proposed replacement having been given to act as agent the Administrative Agent and the Administrative Agent having confirmed in writing that the proposed replacement conforms, in the reasonable judgment of the Administrative Agent, to the criteria set forth above in the definition of “Independent Director,” (iii) the Transferor’s Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Transferor unless a unanimous vote of the Transferor’s Board of Directors (which vote shall include the affirmative vote of each Independent Director) shall approve the taking of such Transferor. Such Transferor shall at all times use its own stationery action in writing prior to the taking of such action and business forms (iv) the provisions requiring an Independent Director and describe itself as a separate legal entity.the provision described in clauses (i)-(iii) of this paragraph cannot be amended without the prior written consent of each Independent Director;
(xi) Other than Take such actions as provided are necessary to ensure that no Independent Director shall at any time serve as a trustee in bankruptcy for the Transferor or any Affiliate thereof;
(xii) Take such actions as are necessary to ensure that the books of account, financial reports and corporate records of the Transferor will be maintained separately from those of TriMas Corp., TriMas LLC and each other Affiliate of the Transferor;
(xiii) Take such actions as are necessary to ensure that any financial statements of TriMas Corp. or Affiliate thereof which are consolidated to include the Transferor will contain detailed notes clearly stating that (A) all of the Transferor’s assets are owned by the Transferor, and (B) the Transferor is a separate corporate entity with its own separate creditors that will be entitled to be satisfied out of the Transferor’s assets prior to any value in the relevant Revolving Credit AgreementTransferor becoming available to the Transferor’s equity holders; and the accounting records and the published financial statements of the Sellers will clearly show that, for accounting purposes, the Receivables and Related Security have been sold to the Transferor;
(xiv) Take such actions as are necessary to ensure that the Transferor’s assets will be maintained in a manner that facilitates their identification and segregation from those of TriMas Corp., the Sellers and other Affiliates of TriMas Corp.;
(xv) Take such actions as are necessary to ensure that no Affiliates of the Transferor shall, directly or indirectly, name the Transferor or enter into any agreement to name the Transferor a direct or contingent beneficiary or loss payee or any insurance policy covering the property of any such Affiliate; and
(xvi) Take such actions as are necessary to ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such the Transferor will otherwise guaranty be, nor will hold itself out to be, responsible for the debts of such the Transferor or the decisions or actions in respect of the daily business and affairs of the Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into . The Transferor will immediately correct any guaranty, or otherwise become liable, known misrepresentation with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such foregoing, and the Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long will not operate or purport to operate as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available an integrated single economic unit with respect to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement each other or in its certificate of incorporation and bylawstheir dealing with any other entity.
Appears in 2 contracts
Samples: Receivables Transfer Agreement (Trimas Corp), Receivables Transfer Agreement (Trimas Corp)
Separate Corporate Existence. Each Such Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreementherein, maintain its own deposit, securities and other account or accounts, separate from those of any Affiliate of such Transferor, with financial institutions. The funds of such Transferor will not be diverted to any other Person or for other than the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Person.
(iii) Ensure that, to the extent that it shares the same officers or other employees as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all material transactions between such Transferor and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement, Pooling and Servicing Agreement (American Express Receivables Financing Corp Iv LLC)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Seller shall:
(i1) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement its Related Documents and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii2) Except as provided in this Agreement, maintain Maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such Transferorthe Seller, with financial commercial banking institutions. The funds of such Transferor the Seller will not be diverted to any other Person or for other than the company corporate use of such Transferorthe Seller (including the payment of duly declared dividends to the Seller's stockholders), and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase AgreementRelated Documents, the funds of such Transferor the Seller shall not be commingled with those of any other PersonAffiliate of the Seller.
(iii3) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iv4) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Seller contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor the Seller and any of its Affiliates shall be only on an arm’sarm's-length basis and shall not be on terms more favorable to either party than receive the terms that would be found in a similar transaction involving unrelated third partiesapproval of the Seller's Board of Directors including at least one Independent Director (as defined below).
(vi5) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members stockholders and other Affiliates. To the extent that such Transferor the Seller and any of its members stockholders or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii6) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ stockholders' and directors’ ' meetings shall be held at least annually.
(viii7) Ensure that its board Board of directors Directors shall be elected independently from the Boards of Directors of its Affiliates and shall at all times after January 15, 1995 include at least one Independent Director (for purposes hereof, “Independent Director” "INDEPENDENT DIRECTOR" shall mean any member of the board Board of directors Directors of such Transferor the Seller that is not and has not at any time been (x) an a director, officer, agent, advisor, consultant, attorney, accountant, employee, member employee or shareholder of any Affiliate of such Transferor which is not a special purpose entity, the Seller or (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) 8) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor the Seller (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferorthe Seller) and shall not be dictated by an Affiliate of such Transferorthe Seller.
(x9) Act solely in its own company corporate name and through its own authorized officers and agents, and no Affiliate of such Transferor the Seller shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself the Seller, except as a separate legal entity.expressly contemplated by this Agreement or the Related Documents;
(xi10) Other than as provided in the relevant Revolving Credit Agreement, ensure Ensure that no Affiliate of such Transferor the Seller shall advance funds to the Seller, other than capital contributions made to enable the Seller to pay the purchase price of Receivables or loan money to such Transferorotherwise conduct its business as contemplated by this Agreement and the Related Documents, and no Affiliate of such Transferor the Seller will otherwise supply funds to, or guaranty debts of such Transferorof, the Seller.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii11) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Personthe Seller other than as expressly contemplated by this Agreement or the Related Documents.
(xiv12) Ensure that any financial reports required of such Transferor the Seller shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the AffiliateAffiliates.
(xv13) Ensure that at all times it is adequately capitalized to engage in Maintain capitalization adequate for the transactions contemplated in conduct of its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylawsbusiness.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Olympic Financial LTD), Sale and Servicing Agreement (Arcadia Financial LTD)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Club Trustee shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Club Trustee will not be diverted to any other Person or for other than trust or corporate uses of the company use of such TransferorClub Trustee, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Person.applicable;
(iiiii) Ensure ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders, beneficiaries or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.;
(iviii) Ensure ensure that, to the extent that it the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts the Club Trustee and the Servicer (together with their respective shareholders or does Affiliates) do business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Club Trustee and any of its Affiliates shall be only on an arm’s-arms’ length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.basis;
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To to the extent that such Transferor the Club Trustee and any of its members stockholders, beneficiaries or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.; and
(viiv) Conduct conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement the Club Trust Agreement or its certificate amended and restated articles of incorporation and bylaws incorporation, as applicable, and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special membersshareholders’, trustees’ and directors’ meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 2 contracts
Samples: Indenture (BBX Capital Corp), Indenture (BBX Capital Corp)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity MRFC shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial institutions. The commercial banking institutions and use its commercially reasonable efforts to ensure that the funds of such Transferor MRFC will not be diverted to any other Person or for other than the company use corporate uses of MRFC and that such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall will not be commingled with those the funds of any other Person.Metaldyne Group Member;
(iiiii) Ensure thatCompensate all employees, consultants and agents directly or indirectly through reimbursement of Metaldyne, from its own funds, for services provided to MRFC by such Persons and to the extent that it shares the same officers or other employees as any of its members Stockholders or other Affiliates, fairly allocate among such entities the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entitiesemployees, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.;
(iviii) Ensure that, to To the extent that it jointly contracts with any of its members Stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, fairly allocate among such entities the costs incurred in so doing shall be allocated fairly among such entitiesdoing, and each such entity shall bear its fair share of such costs. To the extent that such Transferor MRFC contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and or services are provided, and each such entity shall bear its fair share of such costs.;
(iv) Other than the purchase and acceptance through capital contribution of Transferred Receivables, the Subordinated Loan, the payment of distributions and return of capital to the Originators, the payment of the Servicing Fee to the Servicers under this Transfer Agreement, and the transactions for which allocation of expenses and costs are specifically described in this Section 5.01(n), MRFC engages and has engaged in no intercorporate transactions with any Metaldyne Group Member;
(v) Ensure that all material transactions between such Transferor and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number space separate from those the office space of its members and other Affiliatesthe Metaldyne Group Members. To the extent that such Transferor MRFC and any of its members Stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.;
(vi) Issue separate unaudited financial statements prepared not less frequently than quarterly and prepared in accordance with GAAP consistently applied;
(vii) Conduct its affairs strictly in accordance with its certificate of formation bylaws and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special membersstockholders’ and directors’ meetings appropriate to authorize all company action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate ac curate, complete and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.;
(viii) Ensure Not assume or guarantee any of the liabilities of, or make any loans to, any Metaldyne Group Member;
(ix) Take, or refrain from taking, as the case may be, all other actions that its are necessary to be taken or not to be taken in order to (x) ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct with respect to MRFC and (y) comply with those procedures described in such provisions which are applicable to MRFC;
(x) Take such actions as are necessary to ensure that not less than one member of MRFC’s board of directors shall be an individual who (A) is not, and never has been, a direct, indirect or beneficial stockholder, officer, director, employee, affiliate, associate, material supplier or material customer of any Metaldyne Group Member (other than an Independent Director of MTSPC, Inc.) and (B) has (1) prior experience as an independent director for a Person whose Charter Documents required the unanimous consent of all independent directors thereof before such Person could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (2) at all times include least three years of employment experience related to asset securitization agreements, and (C) is otherwise acceptable to the Purchasers and the Administrative Agent (an “Independent Director”). The Charter Documents of MRFC shall provide that (i) at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the MRFC’s board of directors shall be an Independent Director, (ii) MRFC’s board of directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to MRFC unless a unanimous vote of MRFC’s board of directors (which vote shall include the affirmative vote of each Independent Director) shall approve the taking of such Transferor that is not action in writing prior to the taking of such action and has not at any time been (iii) the provisions requiring an independent director and the provision described in clauses (i) and (ii) of this clause (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall cannot be dictated by an Affiliate amended without the prior written consent of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.each Independent Director;
(xi) Other than Take such actions as provided are necessary to ensure that no Independent Director shall at any time serve as a trustee in bankruptcy for MRFC or any Affiliate thereof;
(xii) Take such actions as are necessary to ensure that the relevant Revolving Credit Agreementbooks of account, financial reports and corporate records of MRFC will be maintained separately from those of each Metaldyne Group Member;
(xiii) Take such actions as are necessary to ensure that any financial statements of any Metaldyne Group Member which are consolidated to include MRFC will contain detailed notes clearly stating that (A) all of MRFC’s as sets are owned by MRFC, and (B) MRFC is a separate corporate entity with its own separate creditors that will be entitled to be satisfied out of MRFC’s assets prior to any value in MRFC becoming available to MRFC’s equity holders; and the accounting records and the published financial statements of the Originators will clearly show that, for accounting purposes, the Transferred Receivables have been sold to MRFC;
(xiv) Take such actions as are necessary to ensure that MRFC’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Metaldyne Group Members;
(xv) Take such actions as are necessary to ensure that no Affiliates of MRFC shall, directly or indirectly, name MRFC or enter into any agreement to name MRFC a direct or contingent beneficiary or loss payee or any insurance policy covering the property of any such Affiliate; and
(xvi) Take such actions as are necessary to ensure that no Affiliate of such Transferor shall advance funds or loan money MRFC will be, nor will hold itself out to such Transferorbe, and no Affiliate of such Transferor will otherwise guaranty responsible for the debts of such Transferor.
(xii) Other than organizational expenses MRFC or the decisions or actions in respect of the daily business and as expressly provided hereinaffairs of MRFC, pay all expensesincluding, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guarantybut not limited to, or otherwise become liable, responding to inquiries with respect to or hold its assets or creditworthiness out as being available for ownership of a Transferred Receivable by stating that it is the payment of any obligation of any Affiliate owner of such Transferor nor shall Transferred Receivable and that such Transferor make Transferred Receivable is pledged to the Administrative Agent. MRFC will immediately correct any loans known misrepresentation with respect to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles the foregoing, and shall be issued separately from, but may be consolidated with, any reports prepared for any of MRFC and its Affiliates so long will not operate or purport to operate as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available an integrated single economic unit with respect to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement each other or in its certificate of incorporation and bylawstheir dealing with any other entity.
Appears in 2 contracts
Samples: Receivables Transfer Agreement (Metaldyne Corp), Receivables Transfer Agreement (Metaldyne Corp)
Separate Corporate Existence. Each Transferor of the Seller and AFC hereby acknowledges that the Purchasers, the Insurer, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller's identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a securitization special purpose entity shalldivision of AFC or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in PARAGRAPH (a) of this EXHIBIT IV, the Seller and AFC shall take such actions as shall be required in order that:
(i) Maintain in full effect its existence, rights and franchises as The Seller will be a limited liability company under purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the laws Originator, entering into agreements for the servicing of the state of its formation or such Receivables, selling undivided interests in such Receivables and conducting such other activities as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement it deems necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.carry out its primary activities;
(ii) Except Not less than one member of Seller's Board of Directors (the "INDEPENDENT DIRECTORS") shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller's Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors' fiduciary duty shall be to the Seller (and creditors) and not to the Seller's shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller's own bank accounts for services provided to the Seller except as provided herein in this Agreementrespect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, maintain which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller's operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own deposit, securities separate mailing address and other account or accounts, separate stationery;
(viii) The Seller's books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of such Transferorthe Originator or ADESA which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller's accounts receivable;
(x) The Seller's assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, with financial institutions. The and funds or other assets of such Transferor the Seller will not be diverted to any other Person or for other than the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of the Originator or any other Person.
(iii) Ensure that, to the extent that it shares the same officers Affiliate thereof. The Seller shall not maintain joint bank accounts or other employees depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(ivServicer) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all material transactions between such Transferor and any of its Affiliates shall be only on an arm’s-length basis has independent access and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and pool any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not Seller's funds at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member with any funds of the Originator or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.thereof;
(xii) Other The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.the Seller); and
(xiii) Not enter into The Seller will maintain arm's length relationships with the Originator and any guaranty, Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise become liable, with respect furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold its assets or creditworthiness itself out as being available to be responsible for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect debts of the transactions between such Transferor other or the decisions or actions respecting the daily business and such Affiliate and also state that the assets of such Transferor are not available to pay creditors affairs of the Affiliateother.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Adesa Inc), Receivables Purchase Agreement (Adesa Inc)
Separate Corporate Existence. Each Such Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its organization or incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement, the Trust Agreement and the applicable any Receivables Purchase Agreement to which it is a party and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreementherein, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such Transferor, with financial commercial banking institutions. The funds of such Transferor will not be diverted to any other Person or for other than the company corporate use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable any Receivables Purchase AgreementAgreement to which it is a party, the funds of such Transferor shall not be commingled with those of any Affiliate of such Transferor or any other Person.
(iii) Ensure that, to the extent that it shares the same officers or other employees as any of its members partners, members, managers, stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members partners, members, managers, stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor and any of its partners, members, managers, stockholders or Affiliates shall be only on an arm’sarm's-length basis and shall not be on terms more favorable to either party than receive the terms that would be found in a similar transaction involving unrelated third partiesapproval of such Transferor's Board of Directors, partners, members, managers or other governing body including at least one Independent Director (defined below).
(viv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members members, stockholders and other Affiliates. To the extent that such Transferor and any of its members members, stockholders or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viivi) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement incorporation or its other certificate of incorporation and bylaws formation, as the case may be, and observe all necessary, appropriate and customary company formalitiescorporate formalities (or such formalities appropriate to the entity), including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' or partners', members' or managers', as the case may be, meetings appropriate to authorize all corporate or entity action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ stockholders' or other owners' and directors’ ', partners', members' or managers', as the case may be, meetings shall be held at least annually.
(viiivii) Ensure that its board of directors or other governing body shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” "INDEPENDENT DIRECTOR" shall mean any member of the board of directors or partner, member or manager, as the case may be, of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member employee or shareholder of any Affiliate of such Transferor which Affiliate is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 2 contracts
Samples: Transfer and Servicing Agreement (Compucredit Corp), Transfer and Servicing Agreement (Compucredit Corp)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other account or accounts, separate from those of any Affiliate of such Transferor, with financial institutions. The funds of such Transferor will not be diverted to any other Person or for other than the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Person.
(iii) Ensure that, to the extent that it shares the same officers or other employees as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all material transactions between such Transferor and any of its Affiliates shall be only on an arm’sarm's-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ ' and directors’ ' meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ ' and directors’ ' meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “"Independent Director” " shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 2 contracts
Samples: Transfer and Servicing Agreement (American Express Issuance Trust), Transfer and Servicing Agreement (American Express Issuance Trust)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Seller will not be diverted to any other Person or for other than corporate uses of the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other PersonSeller.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.. 100
(iviii) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Seller contracts or does business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Seller and any of its Affiliates shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor Seller and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viiivi) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereofTake or refrain from taking, “Independent Director” shall mean any member as applicable, each of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided activities specified in the relevant Revolving Credit Agreement"non-substantive consolidation" opinion of Xxxxxxxx & Worcester LLP, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferordelivered on the Effective Date, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferorupon which the conclusions expressed therein are based.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Raytheon Co/), Purchase and Sale Agreement (Raytheon Co/)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Club Trustee shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Club Trustee will not be diverted to any other Person or for other than trust or corporate uses of the company use of such TransferorClub Trustee, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Personapplicable.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders, beneficiaries or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts the Club Trustee and the Servicer (together with their respective stockholders or does Affiliates) do business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Club Trustee and any of its Affiliates shall be only on an arm’s-arms' length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor the Club Trustee and any of its members stockholders, beneficiaries or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with the Club Trust Agreement, its certificate Amended and Restated Articles of formation Incorporation and limited liability company agreement or its certificate of incorporation and bylaws Bylaws, as applicable, and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders', trustees' and directors’ ' meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Bluegreen Corp), Sale and Servicing Agreement (Bluegreen Corp)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Seller will not be diverted to any other Person or for other than corporate uses of the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other PersonSeller.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Seller contracts or does business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Seller and any of its Affiliates shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor Seller and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viiivi) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereofTake or refrain from taking, “Independent Director” shall mean any member as applicable, each of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided activities specified in the relevant Revolving Credit Agreement"non-substantive consolidation" opinion of Xxxxxxxx & Worcester LLP, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferordelivered on the Effective Date, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferorupon which the conclusions expressed therein are based.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Raytheon Co/), Purchase and Sale Agreement (Raytheon Co/)
Separate Corporate Existence. Each The Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such the Transferor will not be diverted to any other Person or for other than corporate uses of the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Personherein.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such the Transferor contracts or does business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor and any of its Affiliates shall be either (i) in accordance with the Asset Purchase Agreement or, if such Affiliate is not a party to the Asset Purchase Agreement, on substantially similar terms), or (ii) only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and preparing and maintaining accurate its own accurate, separate, full and separate complete books, records records, accounts and accountsfinancial statements, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such The Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor 's financial statements will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliateprinciples.
(xvvi) Ensure that at all times it is adequately capitalized Within 120 days after the end of its fiscal year, distribute a copy of its audited annual financial statements to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylawsTrustee.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement and Indenture of Trust (PLM International Inc), Pooling and Servicing Agreement and Indenture of Trust (American Finance Group Inc /De/)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Club Trustee shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Club Trustee will not be diverted to any other Person or for other than trust or corporate uses of the company use of such TransferorClub Trustee, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Person.applicable;
(iiiii) Ensure ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders, beneficiaries or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.;
(iviii) Ensure ensure that, to the extent that it the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts the Club Trustee and the Servicer (together with their respective shareholders or does Affiliates) do business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Club Trustee and any of its Affiliates shall be only on an arm’s-arms’ length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.basis;
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To to the extent that such Transferor the Club Trustee and any of its members stockholders, beneficiaries or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.; and
(viiv) Conduct conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement the Club Trust Agreement or its certificate amended and restated articles of incorporation and bylaws incorporation, as applicable, and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special membersshareholders’, trustees’ and directors’ meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.89
Appears in 2 contracts
Samples: Indenture (BBX Capital Corp), Indenture (BFC Financial Corp)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Seller shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Seller will not be diverted to any other Person or for other than corporate uses of the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other PersonSeller.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it and Originator (together with their respective stockholders or Affiliates) jointly contracts with any of its members or other Affiliates to do does business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts it and the Originator (together with their respective stockholders or Affiliates) does business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Seller and any of its Affiliates shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor Seller and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Bluegreen Corp), Asset Purchase Agreement (Bluegreen Corp)
Separate Corporate Existence. Each The Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial institutions. The commercial banking institutions and use its commercially reasonable efforts to ensure that the funds of such the Transferor will not be diverted to any other Person or for other than corporate uses of the company use of such Transferor, andTransferor and that, except as may be expressly permitted contemplated by this Agreement or the applicable Receivables Purchase AgreementSection 5.02(e), the such funds of such Transferor shall will not be commingled with those the funds of any other Person.Seller or any Subsidiary or Affiliate of the Sellers;
(iiiii) Ensure that, to To the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, fairly allocate among such entities the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entitiesemployees, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.;
(iviii) Ensure that, to To the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, fairly allocate among such entities the costs incurred in so doing shall be allocated fairly among such entitiesdoing, and each such entity shall bear its fair share of such costs. To the extent that such the Transferor contracts or does business with vendors or service RECEIVABLES TRANSFER AGREEMENT providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and or services are provided, and each such entity shall bear its fair share of such costs.;
(viv) Ensure that Enter into all material transactions between such the Transferor and any of its Affiliates shall be Affiliates, whether currently existing or hereafter entered into, only on an arm’s-arm's length basis basis, it being understood and shall not be on terms more favorable to either party than agreed that the terms that would be found transactions contemplated in a similar transaction involving unrelated third parties.the Transaction Documents meet the requirements of this clause (iv);
(viv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number space separate from those the office space of its members the Sellers and other Affiliatesany Affiliates of the Sellers. To the extent that such the Transferor and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.;
(vi) Issue separate unaudited financial statements prepared not less frequently than quarterly and prepared in accordance with GAAP consistently applied;
(vii) Conduct its affairs strictly in accordance with its certificate Articles of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.;
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member Not assume or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of guarantee any of the foregoing).liabilities of, or make any loans to, the Sellers or any Affiliate thereof; provided, that for a period of not more than three (3) months after the Original Closing Date, the Transferor may have outstanding short-term loans to C&A;
(ix) Ensure Take, or refrain from taking, as the case may be, all other actions that decisions are necessary to be taken or not to be taken in order to (x) ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct with respect to its business the Transferor and daily operations shall be independently made by (y) comply with those procedures described in such Transferor (although provisions which are applicable to the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.;
(x) Act solely in its own company name and through its own authorized officers and agentsTake such actions as are necessary to ensure that not less than one member of Transferor's Board of Directors shall be an individual who is not, and no Affiliate never has been, a direct, indirect or beneficial stockholder, officer, director, employee, affiliate, associate, material supplier or material customer of the Collection Agent or any of its Affiliates (an "Independent Director"). The Articles of Incorporation of the Transferor shall provide that (i) at least one member of the Transferor's Board of Directors shall be an Independent Director, (ii) the Transferor's Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Transferor unless a unanimous vote of the Transferor's Board of Directors (which vote shall include the affirmative vote of each Independent Director) shall approve the taking of such Transferor shall be appointed action in writing prior to act as agent the taking of such Transferor. Such Transferor shall at all times use its own stationery action and business forms (iii) the provisions requiring an independent director and describe itself as a separate legal entity.the provision described in clauses (i) and (ii) of this clause (x) cannot be amended without the prior written consent of each Independent Director;
(xi) Other than Take such actions as provided are necessary to ensure that no Independent Director shall at any time serve as a trustee in bankruptcy for the Transferor or any Affiliate thereof; RECEIVABLES TRANSFER AGREEMENT
(xii) Take such actions as are necessary to ensure that the books of account, financial reports and corporate records of the Transferor will be maintained separately from those of C&A and each other Affiliate of the Transferor;
(xiii) Take such actions as are necessary to ensure that any financial statements of C&A or any Affiliate thereof which are consolidated to include the Transferor will contain detailed notes clearly stating that (A) all of the Transferor's assets are owned by the Transferor, and (B) the Transferor is a separate corporate entity with its own separate creditors that will be entitled to be satisfied out of the Transferor's assets prior to any value in the relevant Revolving Credit AgreementTransferor becoming available to the Transferor's equity holders; and the accounting records and the published financial statements of the Sellers will clearly show that, for accounting purposes, the Receivables and Related Security have been sold to the Transferor;
(xiv) Take such actions as are necessary to ensure that the Transferor's assets will be maintained in a manner that facilitates their identification and segregation from those of C&A, the Sellers and other Affiliates of C&A;
(xv) Take such actions as are necessary to ensure that no Affiliates of the Transferor shall, directly or indirectly, name the Transferor or enter into any agreement to name the Transferor a direct or contingent beneficiary or loss payee or any insurance policy covering the property of any such Affiliate; and
(xvi) Take such actions as are necessary to ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such the Transferor will otherwise guaranty be, nor will hold itself out to be, responsible for the debts of such the Transferor or the decisions or actions in respect of the daily business and affairs of the Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into . The Transferor will immediately correct any guaranty, or otherwise become liable, known misrepresentation with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such foregoing, and the Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long will not operate or purport to operate as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available an integrated single economic unit with respect to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement each other or in its certificate of incorporation and bylawstheir dealing with any other entity.
Appears in 1 contract
Samples: Receivables Transfer Agreement (Collins & Aikman Corp)
Separate Corporate Existence. Each Transferor Guarantor, Seller and SCI hereby acknowledge that each Purchaser and the Administrative Agent are entering into the transactions contemplated by this Agreement in reliance upon the Seller's identity as a legal entity separate from the other Affiliated Parties. Therefore, Guarantor, Seller and SCI shall take the steps described in this Section 7.04 and any other steps that the Administrative Agent or any Purchaser reasonably requests to continue Seller's identity as such a separate legal entity and to make it apparent to third Persons that Seller is an entity with assets and liabilities distinct from those of the other Affiliated Parties and those of any other Person, and not a securitization special division of the other Affiliated Parties or any other Person:
(a) Seller will be a limited purpose entity shall:corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the Originators pursuant to the Second Tier Sale Agreements, entering into agreements for the servicing of such Receivables, selling undivided interests in the Receivables to the Administrative Agent for the benefit of the Purchasers, and conducting such other activities as it reasonably deems necessary or appropriate to carry out its primary activities;
(b) At least two members of Seller's Board of Directors shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of any other Affiliated Party;
(c) No director or officer of Seller shall at any time serve as a trustee in bankruptcy for any other Affiliated Party;
(d) Any employee, consultant or agent of Seller will be paid by the Manager for services provided to Seller, which payment shall be charged to Seller's account, except as provided in this Agreement in respect of the Servicing Fee. Seller will engage no agents other than a Servicer for the Receivables, which Servicer (if an Affiliated Party) will be fully compensated for its services to Seller by payment of the Servicing Fee, and the Manager pursuant to the Management Agreement, which Manager's fees shall not exceed $10,000 in any calendar year;
(e) Seller will not incur any liabilities other than its liabilities hereunder and under the other Agreement Documents, liabilities to the independent directors not exceeding $10,000 at any time outstanding (although annual compensation may exceed $10,000 per year), plus $1,000 for each meeting in excess of three per year, plus out-of-pocket expenses approved by the Manager and other liabilities incurred in the ordinary course of business that do not exceed $3,000 due and owing at any one time;
(f) Seller's operating expenses will not be paid by any other Affiliated Party;
(g) Seller will have its own separate mailing address, stationery and, if used, bank checks and, if it uses premises leased, owned or occupied by any other Affiliated Party, its portion of such premises will be defined and separately identified;
(h) Seller's books and records will be maintained separately from those of every other Affiliated Party;
(i) Maintain Any financial statements of any other Affiliated Party which are consolidated to include Seller will contain detailed notes clearly stating that (A) all of Seller's assets are owned by the Seller, and (B) Seller is a separate corporate entity with its own separate creditors which will be entitled to be satisfied out of Seller's assets prior to any value in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification Seller becoming available to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.Seller's equity holders;
(iij) Except as provided The assets of Seller will be maintained in this Agreement, maintain its own deposit, securities a manner that facilitates their identification and other account or accounts, separate segregation from those of any Affiliate other Affiliated Party;
(k) Seller will strictly observe corporate formalities in its dealings with each other Affiliated Party, and funds or other assets of such Transferor, with financial institutions. The funds of such Transferor Seller will not be diverted to any other Person commingled or for other than the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled pooled with those of any other Person.Affiliated Party;
(iiil) Ensure that, to the extent that it shares the same officers Seller shall not maintain joint bank accounts with any other Affiliated Party or other employees depository accounts to which any other Affiliated Party (other than SCI or any Originator in its capacity as any of its members Servicer or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.Subservicer) has independent access;
(ivm) Ensure thatSeller shall not, directly or indirectly, be named and shall not enter into any agreement to be named as a direct or contingent beneficiary or loss payee on any insurance policy covering the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit property of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.Affiliated Party;
(vn) Ensure that all material transactions between Seller will maintain arm's length relationships with each other Affiliated Party. Any other Affiliated Party which renders or otherwise furnishes services or merchandise to Seller will be compensated by Seller at market rates for such Transferor and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.services or merchandise; and
(vio) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and Neither Seller, on the one hand, nor any other Affiliates. To Affiliated Party, on the extent that such Transferor and any of its members other hand, will be or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or will hold itself out to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (responsible for purposes hereof, “Independent Director” shall mean any member the debts of the board of directors of such Transferor that is not other or the decisions or actions respecting the daily business and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member affairs of the immediate family of any of the foregoing)other.
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and or other account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial institutions. The commercial banking institutions or broker-dealers and ensure that the funds of such Transferor the Company will not be diverted to any other Person or for other than corporate uses of the company use of Company, nor will such Transferor, and, except as may funds be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, commingled with the funds (other than funds consisting of (i) Excluded Receivables Payments or (ii) Collections remitted to a Collector pursuant to subsection 2.3(a) of the Servicing Agreement; PROVIDED that, in each case, such Transferor funds shall not be commingled with those for more than two (2) Business Days) of any Seller, USFS, or any other Person.Subsidiary or Affiliate of any Seller or USFS;
(iiiii) Ensure that, to To the extent that it shares the same officers or other employees as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, to the extent practicable, on the basis of such entities* actual share of such costs and each to the extent such entity shall bear its allocation is not practicable, on a basis reasonably related to such entities* fair share of the salary and benefit costs associated with all such common officers and employees.;
(iviii) Ensure that, to To the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, to the extent 49 practicable, on the basis of such entities* actual share of such costs and each to the extent such entity shall bear its allocation is not practicable, on a basis reasonably related to such entities* fair share of such costs. To the extent that such Transferor the Company contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and or services are provided, to the extent practicable, on the basis of such entities* actual share of such costs and each to the extent such entity shall bear its allocation is not practicable, on a basis reasonably related to such entities* fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor the Company and any of its Affiliates Affiliates, whether currently existing or hereafter entered into, shall be only on an arm’sarm's-length basis basis, it being understood and shall not be on terms more favorable to either party than agreed that the terms that would be found transactions contemplated in a similar transaction involving unrelated third parties.the Transaction Documents meet the requirements of this clause (iii);
(viiv) Maintain a principal executive office at a separate address from the address of United Stationers Supply Co., USFS, and administrative office through which its business is conducted and a telephone number their Affiliates; PROVIDED that reasonably segregated offices in the same building shall constitute separate from those addresses for purposes of its members and other Affiliatesthis clause (iv). To the extent that such Transferor the Company and any of its members or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.;
(viiv) Issue separate financial statements prepared not less frequently than annually and prepared in accordance with GAAP;
(vi) Conduct its affairs in its own name and strictly in accordance with its certificate articles of formation and limited liability company agreement or its certificate of incorporation and bylaws association and observe all necessary, appropriate and customary limited liability company formalities, including, but not limited to, holding all regular and special members’ * and directors’ * meetings appropriate to authorize all limited liability company action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.; 50
(vii) Not assume or guarantee any of the liabilities of any Seller, USFS, the Support Provider, the Servicer or any Affiliate of any thereof, it being understood that a shareholder's capital contribution is not such a guarantee or assumption; and
(viii) Ensure Take, or refrain from taking, as the case may be, all other actions that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is are necessary to be taken or not and has not at any time been to be taken in order to (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct in all material respects with respect to the Company and (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as those procedures described in such consolidated reports contain footnotes describing provisions which are applicable to the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the AffiliateCompany.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Separate Corporate Existence. Each The Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a corporation or a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to effect proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain Maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such the Transferor, with financial commercial banking institutions. The funds of such the Transferor will not be diverted to any other Person or for other than the company corporate use of such the Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds and assets of such the Transferor shall not be commingled with those of any other PersonAffiliate of the Transferor.
(iii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such the Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such the Transferor and any of its Affiliates shall be only on an arm’sarm's-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members stockholders and other Affiliates. To the extent that such the Transferor and any of its members stockholders or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viivi) Conduct its affairs strictly in accordance with its certificate of formation charter and limited liability company agreement or its certificate of incorporation and bylaws by-laws and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding including taking all regular and special members’ actions of stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such meetings, passing adopting all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, including payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viiivii) Ensure that its board Board of directors Directors shall be elected independently from the Boards of Directors of its Affiliates and shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member two members of the board Board of directors Directors of such the Transferor that is who are not and has have not at any time been (x) an officerdirectors, agentofficers, advisor, consultant, attorney, accountant, employee, member employees or shareholder shareholders of FCI or Fingerhut or any Affiliate thereof other than any other limited purpose subsidiary of FCI, Fingerhut or any Affiliate within a period of three years prior to such Transferor which is not a special purpose entity, Person's election to the Board of Directors or (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member members of the immediate family of any of the foregoing).
(ixviii) Ensure that decisions with respect to its business and daily operations shall be independently made by such the Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such the Transferor) and shall not be dictated by an Affiliate of such the Transferor.
(xix) Act solely in its own company corporate name and through its own authorized officers and agents, and no Affiliate of such the Transferor shall be appointed to act as agent of such the Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself , except as a separate legal entityexpressly contemplated by this Agreement or the Purchase Agreement.
(xix) Other than as provided in the relevant Revolving Credit Agreement, ensure Ensure that no Affiliate of such the Transferor shall advance funds to the Transferor, other than capital contributions from its corporate parent made to enable the Transferor to pay the purchase price of Receivables or loan money to such Transferoras is otherwise provided in the Purchase Agreement, and no Affiliate of such the Transferor will otherwise supply funds to, or guaranty debts of, the Transferor; provided, however, that its corporate parent may provide funds to the Transferor in connection with capitalization of such Transferorthe Transferor to assure that the Transferor has substantial assets.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiiixi) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Personthe Transferor.
(xivxii) Ensure that any financial reports required of such the Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the AffiliateAffiliates.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Fingerhut Receivables Inc)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Club Trustee shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Club Trustee will not be diverted to any other Person or for other than trust or corporate uses of the company use of such TransferorClub Trustee, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Personapplicable.
(iiiii) Ensure that, that to the extent that it shares the same officers or other employees as any of its members stockholders, beneficiaries or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts the Club Trustee and the Servicer (together with their respective stockholders or does Affiliates) do business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Club Trustee and any of its Affiliates shall be only on an arm’s-arms' length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor the Club Trustee and any of its members stockholders, beneficiaries or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement the Club Trust Agreement or its certificate amended and restated articles of incorporation and bylaws incorporation, as applicable, and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders', trustees' and directors’ ' meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Indenture (Bluegreen Corp)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Club Trustee shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Club Trustee will not be diverted to any other Person or for other than trust or corporate uses of the company use of such TransferorClub Trustee, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Personapplicable.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders, beneficiaries or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts the Club Trustee and the Servicer (together with their respective stockholders or does Affiliates) do business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Club Trustee and any of its Affiliates shall be only on an arm’s-arms' length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor the Club Trustee and any of its members stockholders, beneficiaries or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement the Club Trust Agreement or its certificate Amended and Restated Articles of incorporation and bylaws Incorporation, as applicable, and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders', trustees' and directors’ ' meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Separate Corporate Existence. Each Transferor The Borrower shall take all reasonable steps (including, without limitation, all steps that the Agent may from time to time reasonably request) to maintain the Borrower's identity as a separate legal entity from AFL or any of its Affiliates and to make it manifest to third parties that the Borrower is a securitization special purpose an entity with assets and liabilities distinct from those of AFL and each other Affiliate thereof. Without limiting the generality of the foregoing, the Borrower shall:
(ia) Maintain conduct business correspondence in full effect its existenceown name, rights hold regular meetings of, or obtain regular written consents from, its Board of Directors and franchises maintain appropriate books and records;
(b) except as set forth in its certificate of incorporation, not permit any limitation on the authority of its own directors and officers to conduct its business and affairs in accordance with their independent business judgment, and shall not authorize or suffer any Person other than its own directors and officers to act on its behalf with respect to matters (other than matters customarily delegated to others under powers of attorney) for which a limited liability company under corporation's own directors and officers would customarily be responsible;
(c) subject to the laws terms of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Custodial Agreement, maintain or cause to be maintained by an agent of the Borrower under the Borrower's control physical possession of all its own deposit, securities books and other records;
(d) maintain capitalization adequate for the conduct of its business;
(e) account or accounts, separate for and manage its liabilities separately from those of any Affiliate of such Transferor, with financial institutions. The funds of such Transferor will not be diverted to any other Person or for other than the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Person., including, without limitation, payment of all payroll and other administrative expenses and taxes from its own assets;
(iiif) Ensure maintain its assets separately from those of any other Person;
(g) maintain offices through which its business is conducted separate from those of AFL and any Affiliates of AFL (PROVIDED that, to the extent that it shares the same officers or other employees as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all material transactions between such Transferor AFL and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) and expenses among them, and each such entity shall bear its fair share of such expenses.);
(viih) Conduct not commingle its affairs strictly in accordance funds with its certificate those of formation and limited liability company agreement AFL or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entityAFL or any Affiliates of the Borrower except to the extent contemplated herein, (y) a director of any Affiliate of such Transferor or use its funds for other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).Borrower's uses; and
(ixi) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor the Borrower shall comply with generally accepted accounting principles GAAP and shall be issued separately from, but may be consolidated with, any reports prepared for by any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the AffiliateAffiliates.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Receivables Financing Agreement (Arcadia Financial LTD)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity shall:
(ia) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such Transferor, with financial institutions. The the Buyer and ensure that its funds of such Transferor will not be diverted to any other Person or for other than the company use of Buyer, nor will such Transferor, and, except as may funds be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, commingled with the funds of such Transferor shall not be commingled with those of any other Person.the Buyer;
(iiib) Ensure that, to To the extent that it shares the same any officers or other employees as any of its members or other Affiliateswith the Buyer, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entitiesit and the Buyer, and each such entity it and the Buyer shall bear its their fair share shares of the salary and benefit costs associated with all such common officers and employees.;
(ivc) Ensure that, to To the extent that it jointly contracts with any of its members or other Affiliates the Buyer to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, between it and each such entity the Buyer and it and the Buyer shall bear its their fair share shares of such costs. To the extent that such Transferor it contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Personthe Buyer, the costs incurred in so doing shall be fairly allocated between it and the Buyer in proportion to or among such entities for whose the benefit of the goods and or services are each is provided, and each such entity it and the Buyer shall bear its their fair share shares of such costs.
(v) Ensure that all . All material transactions between such Transferor it and any of its Affiliates the Buyer, whether currently existing or hereafter entered into, shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.basis;
(vid) Maintain a principal executive and administrative office through which its business is conducted and a telephone number space separate from those the office space of its members and other Affiliatesthe Buyer (but which may be located at the same address as the Buyer). To the extent that such Transferor it and any of its members or other Affiliates the Buyer have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among between them, and each such entity shall bear its fair share of such expenses.;
(viie) Conduct its affairs strictly in accordance with its certificate Issue financial statements separate from any financial statements issued by the Buyer;
(f) Not assume or guarantee any of formation and limited liability company agreement the liabilities of the Buyer; and
(g) Take, or its certificate of incorporation and bylaws and observe refrain from taking, as the case may be, all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents other actions that are necessary to authorize actions be taken or not to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been taken in order (x) an officerto ensure that the assumptions and factual recitations set forth in the opinion of Xxxxx Xxxx & Xxxxxxxx delivered pursuant to the Schedule of Documents with respect to issues of substantive consolidation and true-sale and absolute transfer, agentremain true and correct with respect to it (and, advisorto the extent within its control, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of to ensure that the assumptions and factual recitations set forth in such Transferor which is not a special purpose entity, opinions remain true and correct with respect to the Buyer) and (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as those procedures described in such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state provisions that the assets of such Transferor are not available applicable to pay creditors of the Affiliateit.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Separate Corporate Existence. Each Transferor The Company ---------------------------- hereby acknowledges that is a securitization special purpose entity shall:
(i) Maintain in full effect its existenceLender, rights the Liquidity Banks and franchises as a limited liability company under the laws of Administrator, are entering into the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of transactions contemplated by this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate Transaction Documents in reliance upon the transactions contemplated hereby.
(ii) Except Company's identity as provided in this Agreement, maintain its own deposit, securities and other account or accounts, a legal entity separate from those of any Affiliate of such TransferorAnnTaylor. Therefore, with financial institutions. The funds of such Transferor will not be diverted to any other Person or for other than from and after the company use of such Transferordate hereof, and, except as may be expressly permitted the Company shall take all steps specifically required by this Agreement or by the applicable Receivables Purchase Agreement, Lender or Administrator to continue the funds of such Transferor shall not be commingled Company's identity as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of any other Person.
(iii) Ensure thatServicer, to the extent that it shares the same officers or other employees as any of its members or other Affiliates, the salaries of AnnTaylor and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all material transactions between such Transferor and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entitydivision of Servicer, (y) a director of AnnTaylor or any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member Person. Without limiting the generality of the immediate family of any of foregoing and in addition to and consistent with the foregoing).other covenants set forth herein, the Company shall take such actions as shall be required in order that:
(ixa) Ensure that decisions with respect to its business and daily operations shall The Company will be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor limited purpose corporation whose primary activities are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or restricted in its certificate of incorporation to purchasing or otherwise acquiring from AnnTaylor, owning, holding, granting security interests, or selling interests, in Receivables, Contracts, Related Security and bylaws.Collections from AnnTaylor, entering into agreements for the servicing and financing of the Receivables Pool, entering into interest rate agreements, spread account agreements and similar documents and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(b) Not less than one member of the Company's Board of Directors (the "Independent Director") shall be an -------------------- individual who is not a direct, indirect or beneficial stockholder, officer, director, employee, affiliate, associate, or supplier of the Company or any of its Affiliates. The certificate of incorporation of the Company shall provide that (i) the Company's Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Company unless the Independent Director shall approve the taking of such action in writing prior to the taking of such action and (ii) such provision cannot be amended without the prior written consent of the Independent Director;
(c) The Independent Director shall not at any time serve as a trustee in bankruptcy for the Company, AnnTaylor or any Affiliate thereof;
(d) Any employee, consultant or agent of the Company will be compensated from the Company's funds for services provided to the Company. The Company will engage no agents other than its attorneys, auditors and other professionals, and a servicer for the Receivables Pool, which servicer will be fully compensated for its services to the Company by payment of the Servicer's Fee;
(e) The Company will contract with Servicer to perform for the Company all operations required on a daily basis to service the Receivables Pool. The Company will pay Servicer the Servicer's Fee pursuant hereto. The Company will not incur any material indirect or overhead expenses for items shared between the Company and AnnTaylor (or any other Affiliate thereof) which are not reflected in the Servicer's Fee. To the extent, if any, that the Company and AnnTaylor (or any other Affiliate thereof) share items of expenses not reflected in the Servicer's Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that AnnTaylor shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal, agency and other fees;
(f) The Company's operating expenses will not be paid by AnnTaylor or any other Affiliate thereof;
(g) The Company will have its own separate post office box and stationery;
(h) The Company's books and records will be maintained separately from those of AnnTaylor and any other Affiliate thereof;
(i) All financial statements of AnnTaylor or any Affiliate thereof that are consolidated to include the Company will contain detailed notes clearly stating that (A) all of the Company's assets are owned by the Company, and
Appears in 1 contract
Samples: Receivables Financing Agreement (Anntaylor Stores Corp)
Separate Corporate Existence. Each The Depositor hereby acknowledges that the Trust is entering into the transactions contemplated by the Basic Documents in reliance upon the Depositor's identity as a legal entity separate from DFS and the Transferor. Therefore, the Depositor shall take all reasonable steps to make it apparent to third Persons that each of DFS and the Transferor is an entity with assets and liabilities distinct from those of the Depositor and any other Affiliate and that the Depositor is not a securitization special purpose entity shalldivision of DFS or the Transferor or any other Person. Without limiting the foregoing, the Depositor shall (and shall cause each of DFS and the Transferor to) operate and conduct its business and otherwise act in a manner which is consistent with the following:
(ia) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or The Depositor shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities stationery and other account or accounts, business forms separate from those of any Affiliate other Person (including DFS and the Transferor) and shall conduct business in its own name.
(b) The Depositor shall not need to maintain any office space of its own (apart from the office space used by Servicer) as part of its operations. If the Depositor utilizes any office space, such office space shall be clearly demarcated as being allocated to Depositor.
(c) DFS or the Transferor may issue consolidated financial statements that shall include the Depositor, but such financial statements shall contain a footnote to the effect that DFS contributed certain Receivables to the Transferor, with the Transferor then contributed the Receivables to the Depositor and the Depositor in turn contributed the Receivables to the Trust. Separate financial institutionsstatements shall also be prepared for the Depositor. The funds of such Transferor will not be diverted In addition to the aforementioned footnote to any other Person or for other than the company use of such Transferorconsolidated financial statement, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase AgreementDFS, the funds Transferor and the Depositor shall take certain actions to disclose publicly the Depositor's separate existence and the transactions contemplated hereby, including, without limitation, through the filing of such UCC financing statements. Neither DFS, the Transferor nor the Depositor has concealed or shall conceal from any interested party any transfers contemplated by the Basic Documents, although Obligors shall not be commingled with affirmatively informed in the first instance of the transfer of their obligations.
(d) The Transferor has caused and shall continue to cause an Independent Director to be elected to the board of directors of the Depositor, and the Depositor compensates the Independent Director.
(e) The Depositor shall not have its own employees, and the Depositor's business relating to the Receivables shall be primarily conducted through DFS as Servicer. However, any allocations of direct, indirect or overhead expenses for items shared among the Depositor, the Transferor and DFS that are not included as part of the Servicing Fee are and shall be made among such entities to the extent practical on the basis of actual use or value of services rendered and otherwise on a basis reasonably related to actual use or the value of services rendered.
(f) DFS, the Depositor and the Transferor shall maintain their assets and liabilities in such a manner that it is not costly or difficult to segregate, ascertain or otherwise identify the individual assets and liabilities of the Depositor from those of the others or from those of any other Person, including any other subsidiary or other Affiliate of DFS. Except as set forth below, the Depositor shall maintain its own books of account and corporate records separate from DFS, the Transferor, and any other subsidiary or other Affiliate of DFS. The Depositor shall not commingle or pool its funds (or other assets) or liabilities with those of DFS, the Transferor, or any other subsidiary or Affiliate of DFS except as specifically provided in this Agreement with respect to the temporary commingling of collections of the Receivables and except with respect to the retention by DFS, in its capacity as Servicer, of the books and records pertaining to the Receivables. However, DFS shall not generally make the books and records relating to the Receivables available to any of the creditors of DFS or other interested persons, and in the rare instance when it does so, DFS simultaneously also shall provide the marked computer records and shall make such books and records available for the sole purpose of permitting creditors and other interested parties of DFS to verify the existence of DFS and performance of its duties as Servicer. The Depositor shall not maintain joint bank accounts or other depository accounts to which DFS, the Transferor, or any other subsidiary or Affiliate of DFS (other than DFS solely in its capacity as Servicer) has independent access.
(iiig) Ensure that, to the extent that it shares the same officers or other employees as any Each of its members or other Affiliates, the salaries of DFS and the expenses related Transferor, on the one hand, and the Depositor, on the other hand, shall strictly observe corporate formalities, including with respect to providing benefits to such officers its dealings with the other. Specifically, no transfer of assets between DFS and the Transferor on the one hand, and the Depositor, on the other employees hand, shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employeesmade without adherence to corporate formalities.
(ivh) Ensure thatNeither the Depositor, on the one hand, or DFS, the Transferor, or any other subsidiary or other Affiliate of DFS, on the other hand, shall be, or shall hold itself out to be, responsible for the debts of the other, or, except as provided in this Agreement with respect to the extent duties of the Servicer, the decisions or actions respecting the daily business and affairs of the other, except as contemplated by the expense reimbursement and indemnification provisions of the Basic Documents and any underwriting agreement executed in connection therewith.
(i) All distributions made by the Depositor to the Transferor as its sole shareholder shall be made in accordance with applicable law.
(j) Any other transactions between DFS and the Depositor or DFS and the Transferor permitted by (although not expressly provided for in the Basic Documents) shall be fair and equitable to DFS, the Depositor and the Transferor, shall be the type of transaction that it jointly contracts with would be entered into by a prudent Person in the position of DFS, the Depositor or the Transferor vis a vis each other, and shall be on terms that are at least favorable as may be obtained from a Person who is not DFS, the Depositor or the Transferor.
(k) The Depositor is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy covering the property of its members DFS, the Transferor or any other subsidiary or other Affiliates Affiliate of DFS except for an insurance policy with respect to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, liability of directors and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially officers maintained by Deutsche Bank AG for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods its direct and services are provided, and each such entity shall bear its fair share of such costsindirect subsidiaries.
(v) Ensure that all material transactions between such Transferor and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Deutsche Recreational Asset Funding Corp)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Club Trustee shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Club Trustee will not be diverted to any other Person or for other than trust or corporate uses of the company use of such TransferorClub Trustee, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Personapplicable.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members shareholders, beneficiaries or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it the Club Trustee and the Servicer (together with their respective shareholders or Affiliates) jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts the Club Trustee and the Servicer (together with their respective stockholders or does Affiliates) do business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Club Trustee and any of its Affiliates shall be only on an arm’s-arms’ length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor the Club Trustee and any of its members stockholders, beneficiaries or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.. 75
(viiv) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement the Club Trust Agreement or its certificate amended and restated articles of incorporation and bylaws incorporation, as applicable, and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special membersstockholders’, trustees’ and directors’ meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Omnibus Amendment (BBX Capital Corp)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity Seller shall:: ----------------------------
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor Seller will not be diverted to any other Person or for other than the company use corporate uses of such Transferor, andSeller, except as may be expressly permitted by this Agreement for dividends allowed under Section 2.5(m) or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Person.Section 2.5(n). -------------- --------------
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor Seller contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions (other than this Agreement and the Receivables Purchase Agreement) between such Transferor Seller and any of its Affiliates shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor Seller and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ .
(vi) Conduct its own business in its own name.
(vii) Use separate stationary, invoices and directors’ meetings shall be held at least annuallychecks.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe Hold itself out as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Seller shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Seller will not be diverted to any other Person or for other than corporate uses of the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other PersonSeller.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Seller contracts or does business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Seller and any of its Affiliates shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor Seller and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders, and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viiivi) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereofTake or refrain from taking, “Independent Director” shall mean any member as applicable, each of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided activities specified in the relevant Revolving Credit Agreement"non-substantive consolidation" opinion of Blank Rome Xxxxxxx & XxXxxxxx LLP delivered on the Closing Date, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferorupon which the conclusions expressed therein are based.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Receivables Purchase Agreement (American Business Financial Services Inc /De/)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Trust Depositor shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Trust Depositor will not be diverted to any other Person or for other than corporate uses of the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other PersonTrust Depositor.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair -66- 74 share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Trust Depositor contracts or does business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Trust Depositor and any of its Affiliates shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor the Trust Depositor and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viiivi) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereofTake or refrain from taking, “Independent Director” shall mean any member as applicable, each of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided activities specified in the relevant Revolving Credit Agreement"substantive consolidation" opinion of Sullxxxx & Xromxxxx, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferorxxlivered on the Closing Date, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferorupon which the conclusions expressed therein are based.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Orix Credit Alliance Receivables Trust 2000-A)
Separate Corporate Existence. Each Transferor Guarantor, Seller and SCI hereby acknowledge that each Purchaser and the Administrative Agent are entering into the transactions contemplated by this Agreement in reliance upon the Seller's identity as a legal entity separate from the other Affiliated Parties. Therefore, Guarantor, Seller and SCI shall take the steps described in this Section 7.04 and any other steps that the Administrative Agent or any Purchaser reasonably requests to continue Seller's identity as such a separate legal entity and to make it apparent to third Persons that Seller is an entity with assets and liabilities distinct from those of the other Affiliated Parties and those of any other Person, and not a securitization special division of the other Affiliated Parties or any other Person:
(a) Seller will be a limited purpose entity shall:corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the Originators pursuant to the Second Tier Sale Agreements or the Intermediate Sale Agreement, entering into agreements for the servicing of such Receivables, selling undivided interests in the Receivables to the Administrative Agent for the benefit of the Purchasers, and conducting such other activities as it reasonably deems necessary or appropriate to carry out its primary activities;
(b) At least two members of Seller's Board of Directors shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of any other Affiliated Party;
(c) No director or officer of Seller shall at any time serve as a trustee in bankruptcy for any other Affiliated Party;
(d) Any employee, consultant or agent of Seller will be paid by the Manager for services provided to Seller, which payment shall be charged to Seller's account, except as provided in this Agreement in respect of the Servicing Fee. Seller will engage no agents other than a Servicer for the Receivables, which Servicer (if an Affiliated Party) will be fully compensated for its services to Seller by payment of the Servicing Fee, and the Manager pursuant to the Management Agreement, which Manager's fees shall not exceed $10,000 in any calendar year;
(e) Seller will not incur any liabilities other than its liabilities hereunder and under the other Agreement Documents, liabilities to the independent directors not exceeding $10,000 at any time outstanding (although annual compensation may exceed $10,000 per year), plus $1,000 for each meeting in excess of three per year, plus out-of-pocket expenses approved by the Manager and other liabilities incurred in the ordinary course of business that do not exceed $3,000 due and owing at any one time;
(f) Seller's operating expenses will not be paid by any other Affiliated Party;
(g) Seller will have its own separate mailing address, stationery and, if used, bank checks and, if it uses premises leased, owned or occupied by any other Affiliated Party, its portion of such premises will be defined and separately identified;
(h) Seller's books and records will be maintained separately from those of every other Affiliated Party;
(i) Maintain Any financial statements of any other Affiliated Party which are consolidated to include Seller will contain detailed notes clearly stating that (A) all of Seller's assets are owned by the Seller, and (B) Seller is a separate corporate entity with its own separate creditors which will be entitled to be satisfied out of Seller's assets prior to any value in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification Seller becoming available to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.Seller's equity holders;
(iij) Except as provided The assets of Seller will be maintained in this Agreement, maintain its own deposit, securities a manner that facilitates their identification and other account or accounts, separate segregation from those of any Affiliate other Affiliated Party;
(k) Seller will strictly observe corporate formalities in its dealings with each other Affiliated Party, and funds or other assets of such Transferor, with financial institutions. The funds of such Transferor Seller will not be diverted to any other Person commingled or for other than the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled pooled with those of any other Person.Affiliated Party;
(iiil) Ensure that, to the extent that it shares the same officers Seller shall not maintain joint bank accounts with any other Affiliated Party or other employees depository accounts to which any other Affiliated Party (other than SCI or any Originator in its capacity as any of its members Servicer or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.Subservicer) has independent access;
(ivm) Ensure thatSeller shall not, directly or indirectly, be named and shall not enter into any agreement to be named as a direct or contingent beneficiary or loss payee on any insurance policy covering the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit property of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.Affiliated Party;
(vn) Ensure that all material transactions between Seller will maintain arm's length relationships with each other Affiliated Party. Any other Affiliated Party which renders or otherwise furnishes services or merchandise to Seller will be compensated by Seller at market rates for such Transferor and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.services or merchandise; and
(vio) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and Neither Seller, on the one hand, nor any other Affiliates. To Affiliated Party, on the extent that such Transferor and any of its members other hand, will be or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or will hold itself out to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (responsible for purposes hereof, “Independent Director” shall mean any member the debts of the board of directors of such Transferor that is not other or the decisions or actions respecting the daily business and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member affairs of the immediate family of any of the foregoing)other.
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Club Trustee shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Club Trustee will not be diverted to any other Person or for other than trust or corporate uses of the company use of such TransferorClub Trustee, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Person.applicable;
(iiiii) Ensure ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders, beneficiaries or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.;
(iviii) Ensure ensure that, to the extent that it the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts the Club Trustee and the Servicer (together with their respective shareholders or does Affiliates) do business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.88
(viv) Ensure to the extent that all material transactions between such Transferor the Club Trustee and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members stockholders, beneficiaries or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.; and
(viiv) Conduct conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement the Club Trust Agreement or its certificate amended and restated articles of incorporation and bylaws incorporation, as applicable, and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special membersshareholders’, trustees’ and directors’ meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Indenture (BFC Financial Corp)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial institutions. The commercial banking institutions and ensure that the funds of such Transferor the Company will not be diverted to any other Person or for other than corporate uses of the company use of Company, nor will such Transferor, and, except as may funds be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, commingled with the funds of such Transferor shall not be commingled with those of Parent or any other Person.Subsidiary or Affiliate of Parent;
(iiiii) Ensure that, to To the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.;
(iviii) Ensure that, to To the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Company contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and or services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all material . All transactions between such Transferor the Company and any of its Affiliates Affiliates, whether currently existing or hereafter entered into, shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.basis;
(viiv) Maintain a separate phone number and a principal executive and administrative office through which its business is conducted and a telephone number separate from those of Parent and its members and other Affiliates. To the extent that such Transferor the Company and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.;
(viiv) Issue separate financial statements prepared not less frequently than quarterly and prepared in accordance with GAAP;
(vi) Conduct its affairs in its own name and strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.;
(vii) Not assume or guarantee any of the liabilities of the Master Servicer or any Affiliate thereof or act as an agent for any such entity;
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entityBe responsible for paying its own expenses, (y) not file a director bankruptcy petition without the consent of any Affiliate its Independent Directors (as defined in the Certificate of such Transferor other than an independent director Incorporation of any Affiliate which is a special purpose entity or the Company) and (z) a member not engage in transactions with any other person except as expressly permitted by the Certificate of Incorporation of the immediate family of any of the foregoing).Company; and
(ix) Ensure Take or refrain from taking, as the case may be, all other actions that decisions are necessary to be taken or not to be taken in order to (x) ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct in all respects with respect to its business the Company and daily operations shall be independently made by (y) comply with those procedures described in such Transferor (although provisions which are applicable to the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.Company;
(x) Act Maintain the assets in a manner which facilitates their identification and segregation from those of any Affiliate;
(xi) Except as expressly otherwise permitted hereunder or under any of the other Transaction Documents, not permit the commingling or pooling of its funds or other assets with the assets of any Affiliate;
(xii) Maintain financial records which are separate from those of any Affiliate;
(xiii) Conduct all of its business (whether in writing or orally) solely in its own company name and through its own duly authorized officers officer, employees and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.; and
(xiv) Ensure that Not make or declare any financial reports required dividends or other distributions of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any cash or property to the holders of its Affiliates so long as such consolidated reports contain footnotes describing the effect equity securities or make redemptions or repurchases of the transactions between such Transferor its equity securities, in either case, on a periodic basis any more frequently than monthly or otherwise, in certain cases, in accordance with appropriate corporate formalities and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliateconsistent with sound business judgment.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Master Pooling and Servicing Agreement (General Cable Corp /De/)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Seller shall:: ----------------------------
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Seller will not be diverted to any other Person or for other than corporate uses of the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other PersonSeller.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Seller contracts or does business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Seller and any of its Affiliates shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor Seller and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders, and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viiivi) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereofTake or refrain from taking, “Independent Director” shall mean any member as applicable, each of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided activities specified in the relevant Revolving Credit Agreement"non-consolidation" opinion of Xxxxxxx Xxxx LLP delivered on the Closing Date, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferorupon which the conclusions expressed therein are based.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Loan Purchase and Servicing Agreement (First International Bancorp Inc)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Company shall:: ----------------------------
(ia) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial institutions. The commercial banking institutions and ensure that the funds of such Transferor the Company will not be diverted to any other Person or for other than corporate uses of the company use of Company, nor will such Transferor, and, except as may funds be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, commingled with the funds of such Transferor shall not be commingled with those any Seller or any other Subsidiary or Affiliate of any other Person.Seller; provided, that notwithstanding the foregoing, Collections in respect of -------- Purchased Receivables and Receivables may be deposited into the Designated Accounts and the Concentration Account;
(iiib) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.;
(ivc) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Company contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and or services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor the Company and any of its Affiliates Affiliates, whether currently existing or hereafter entered into, shall be only on an arm’s-arm's length basis basis, it being understood and shall not be on terms more favorable to either party than agreed that the terms that would be found transactions contemplated in a similar transaction involving unrelated third parties.the Transaction Documents meet the requirements of this clause (c);
(vid) Maintain maintain a principal executive office at a separate address from the address of WMI and administrative office through which its business is conducted and a telephone number Affiliates; provided, that segregated offices in -------- the same building shall constitute separate from those addresses for purposes of its members and other Affiliatesthis clause (d). To the extent that such Transferor the Company and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.;
(viie) Conduct issue separate financial statements prepared not less frequently than quarterly and prepared in accordance with GAAP;
(f) conduct its affairs in its own name and strictly in accordance with its certificate of formation and limited liability company agreement or its certificate articles of incorporation and bylaws and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.;
(viiig) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean not assume or guarantee any member of the board liabilities of directors any Seller, any Servicer or any Affiliate of such Transferor any thereof; and
(h) take, or refrain from taking, as the case may be, all other actions that is are necessary to be taken or not and has not at any time been to be taken in order to (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct in all material respects with respect to the Company and (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as those procedures described in such consolidated reports contain footnotes describing provisions which are applicable to the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the AffiliateCompany.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Receivables Transfer and Servicing Agreement (Waste Management Inc /De/)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial institutions. The commercial banking institutions and ensure that the funds of such Transferor the Company will not be diverted to any other Person or for other than corporate uses of the company use Company, nor will any material amount of such Transferor, and, except as may funds be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, commingled with the funds of such Transferor shall not be commingled with those any Seller or any other Subsidiary or Affiliate of any other Person.Seller;
(iiiii) Ensure that, to To the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.;
(iviii) Ensure that, to To the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Company contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and or services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor the Company and any of its Affiliates Affiliates, whether currently existing or hereafter entered into, shall be only on an arm’sarm's-length basis basis, it being understood and shall not be on terms more favorable to either party than agreed that the terms that would be found transactions contemplated in a similar transaction involving unrelated third parties.the Transaction Documents meet the requirements of this clause (iii);
(viiv) Maintain a principal executive office at a separate address from the address of Core-Xxxx and administrative office through which its business is conducted Affiliates; PROVIDED that a separate space within, but segregated from, that of Core-Xxxx and a telephone number its Affiliates shall constitute separate from those addresses for purposes of its members and other Affiliatesthis clause (iv). To the extent that such Transferor the Company and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.;
(viiv) Issue separate financial statements prepared not less frequently than quarterly and prepared in accordance with GAAP;
(vi) Conduct its affairs in its own name and strictly in accordance with its certificate of formation and limited liability company agreement or its certificate articles of incorporation and bylaws and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.;
(vii) Not assume or guarantee any of the liabilities of any Seller, any Servicing Party or any Affiliate of any thereof; and
(viii) Ensure Take, or refrain from taking, as the case may be, all other actions that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is are necessary to be taken or not and has not at any time been to be taken in order to (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct in all material respects with respect to the Company and (y) a director of any Affiliate of comply in all material respects with those procedures described in such Transferor other than an independent director of any Affiliate provisions which is a special purpose entity or (z) a member of are applicable to the immediate family of any of the foregoing)Company.
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Company shall, and each of the Members shall ensure that:
(i) Maintain The Company shall maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation Delaware and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, The Company shall maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such Transferorits Affiliates or Members, with financial commercial banking institutions. The funds of such Transferor the Company will not be diverted to any other Person or for other than the company corporate use of such Transferor, the Company and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor the Company shall not be commingled with those of any other Personof its Affiliates or Members.
(iii) Ensure that, to the extent that it shares the same officers or other employees as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Company contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and the Company and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor the Company and any of its Affiliates or Members shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive The Company shall compensate all employees, agents and administrative office through which its business is conducted consultants directly, from the Company’s own funds, for services provided to the Company by such persons, and a telephone number separate from those of its members and other Affiliates. To to the extent that any such Transferor person is also an employee, agent or consultant of any Member or any Affiliate thereof, the Company and any of its members such Member or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share Affiliate will allocate the compensation of such expensesperson between the Company and such Member or Affiliate on a basis that reflects the services rendered to each of the Company and such Member or Affiliate.
(viiv) Conduct The Company shall conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws this Agreement and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special membersMembers’ and directorsManagers’ meetings appropriate to authorize all Company action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular membersMembers’ and directorsManagers’ meetings shall be held at least annually.
(viiivi) Ensure that its board of directors The Company shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor the Company (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of such Transferorthe Company or a Member) and shall not be dictated by an Affiliate of such Transferorthe Company or a Member.
(xvii) Act The Company shall act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor the Company shall be appointed to act as its agent, except as expressly contemplated by this Agreement, provided, however, the Board of Managers may appoint RCPC as the agent and on behalf of the Company to perform quality control functions with respect to the licensing of the Licensed Marks under the Company License Agreements; provided, that RCPC shall indemnify, defend and hold harmless the Company from and against any and all claims, losses, costs, damages and expenses arising from the performance or failure to perform such Transferor. Such Transferor duties.
(viii) The Company shall at all times use its own stationery stationery, invoices and business forms and describe itself as a separate legal entitychecks.
(xiix) Other than as provided in the relevant Revolving Credit Agreement, The Company shall ensure that no Affiliate of such Transferor the Company shall advance funds to the Company, other than (A) capital contributions from its Members or loan money to such Transferor(B) as is otherwise provided herein, and no Affiliate of such Transferor the Company will otherwise supply funds to, or guaranty debts of, the Company; provided, however, that a Member of such Transferorthe Company may provide funds to the Company in connection with the capitalization of the Company or the payment of expenses provided for herein.
(xiix) Other than the organizational expenses and as expressly provided herein, the Company shall pay all expenses, indebtedness and other obligations incurred by it using its own fundsit.
(xiiixi) Not The Company shall not enter into any guaranty, guaranty or become otherwise become obligated or liable, with respect to any obligation of, or hold out its assets or creditworthiness out credit as being available for to satisfy the payment obligations of, any other entity including any of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Personits Affiliates.
(xivxii) Ensure The Company shall ensure that any financial reports required of such Transferor the Company shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing Affiliates, subject to noting the effect separateness of the transactions between such Transferor Company and such Affiliate and also state that the unavailability of its assets to satisfy any debt of such Transferor are not available to pay creditors of the AffiliateAffiliates.
(xvxiii) Ensure The Company shall ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate this Agreement.
(xiv) The Company shall ensure that the financial statements and books and records of formation the Company and its limited liability company agreement Members reflect the separate existence of the Company.
(xv) The Company shall not act as agent for its Members or in any of its certificate Affiliates, but shall instead present itself to the public as an entity separate from each such corporation.
(xvi) The Company shall not pledge its assets for the benefit of incorporation and bylawsany Person, except as contemplated by this Agreement.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Roux Laboratories, Inc.)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial institutions. The commercial banking institutions and ensure that the funds of such Transferor the Company will not be diverted to any other Person or for other than corporate uses of the company use of Company, nor will such Transferor, and, except as may funds be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, commingled with the funds of such Transferor shall not be commingled with those any Seller or any other Subsidiary or Affiliate of any other Person.Seller;
(iiiii) Ensure that, to To the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.;
(iviii) Ensure that, to To the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Company contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and or services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor the Company and any of its Affiliates Affiliates, whether currently existing or hereafter entered into, shall be only on an arm’sarm's-length basis basis, it being understood and shall not be on terms more favorable to either party than agreed that the terms that would be found transactions contemplated in a similar transaction involving unrelated third parties.the Transaction Documents meet the requirements of this clause (iii);
(viiv) Maintain a principal executive office at a separate address from the address of RS and administrative office through which its business is conducted and a telephone number Affiliates; PROVIDED that segregated offices in the same building shall constitute separate from those addresses for purposes of its members and other Affiliatesthis clause (iv). To the extent that such Transferor the Company and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.;
(viiv) Issue separate financial statements prepared not less frequently than quarterly and prepared in accordance with GAAP;
(vi) Conduct its affairs in its own name and strictly in accordance with its certificate of formation and limited liability company agreement or its certificate articles of incorporation and bylaws and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.;
(vii) Not assume or guarantee any of the liabilities of any Seller, any Servicing Party or any Affiliate of any thereof; and
(viii) Ensure Take, or refrain from taking, as the case may be, all other actions that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is are necessary to be taken or not and has not at any time been to be taken in order to (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct in all material respects with respect to the Company and (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as those procedures described in such consolidated reports contain footnotes describing provisions which are applicable to the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the AffiliateCompany.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity Seller shall:: ----------------------------
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor Seller will not be diverted to any other Person or for other than the company use corporate uses of such Transferor, and, Seller except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Person.for dividends allowed under Section 2.5(m). --------------
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor Seller contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions (other than this Agreement and the Receivables Purchase Agreement) between such Transferor Seller and any of its Affiliates shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor Seller and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ .
(vi) Conduct its own business in its own name.
(vii) Use separate stationary, invoices and directors’ meetings shall be held at least annuallychecks.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe Hold itself out as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity shall:
(i) Maintain to the extent the Company's office is located in full effect its existence, rights and franchises as a limited liability company under the laws offices of an Affiliate of the state of its formation or as a corporation under the laws of the state of its incorporation Company, maintain separate office space and will obtain and preserve its qualification to do business in each jurisdiction in which pay fair market rent for such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.office space;
(ii) Except as provided in this Agreementmaintain the Company's books, financial statements and records separate from those of any Affiliate or other Person;
(iii) maintain its own deposit, securities and other account or deposit accounts, separate from those of any Affiliate of such Transferoror other Person, with financial institutions. The funds of such Transferor will and not be diverted to any other Person or for other than commingle the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled Company's assets with those of any Affiliate or other Person.
(iii) Ensure that, to the extent that it shares the same officers or other employees as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.;
(iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all material transactions between such Transferor and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act act solely in its own company corporate name and through its own authorized officers and agents; make investments directly or by brokers engaged and paid by the Company or its agents (provided that if any such agent is an Affiliate of the Company, it shall be compensated at a fair market rate for its services);
(v) separately manage the Company's liabilities from those of any Affiliate and pay its own liabilities, including all administrative expenses, from its own separate assets, except that the Seller may pay the organizational expenses of the Company;
(vi) to the extent that it shares the officers or other employees of any Affiliate or other Person, bear its share of the salaries of, and no the expenses related to providing benefits to, such officers and other employees;
(vii) to the extent that it contracts with any Affiliate or other Person to conduct business with vendors or to share overhead, bear its fair share of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at costs and conduct all times use its own stationery transactions between the Company and business forms and describe itself as a separate legal entity.any Affiliates on an arms-length basis; and
(xiviii) Other than as provided in pay from the relevant Revolving Credit AgreementCompany's assets all obligations and indebtedness of any kind incurred by the Company. The Company shall abide by all corporate formalities, ensure that no Affiliate including the maintenance of such Transferor shall advance funds or loan money to such Transferorcurrent minute books, and no Affiliate cause its financial statements to be prepared not less frequently than quarterly and in accordance with GAAP in a manner that indicates the separate existence of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses the Company and as expressly provided herein, its assets and liabilities. The Company shall pay all expensesits liabilities, indebtedness not assume the liabilities of any Affiliate and other obligations incurred by it using its own funds.
not guarantee the liabilities of any Affiliate. The officers and directors of the Company (xiiias appropriate) Not enter into any guaranty, or otherwise become liable, shall make decisions with respect to the business of the Company independent of, and not dictated by, any controlling entity. The Company shall take or hold its assets or creditworthiness out as being available for refrain from taking actions necessary in order to ensure that the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor assumptions set forth in the Specified Bankruptcy Opinion Provisions remain correct and shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliateprocedures described therein.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Pooling Agreement (Ingram Micro Inc)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity Seller shall:: ----------------------------
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor Seller will not be diverted to any other Person or for other than the company use corporate uses of such Transferor, and, Seller except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Person.for dividends allowed under Section ------- 2.5(m). ------
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor Seller contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions (other than this Agreement and the Receivables Purchase Agreement) between such Transferor Seller and any of its Affiliates shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor Seller and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ .
(vi) Conduct its own business in its own name.
(vii) Use separate stationary, invoices and directors’ meetings shall be held at least annuallychecks.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe Hold itself out as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (First Consumers Master Trust)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Seller shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Seller will not be diverted to any other Person or for other than corporate uses of the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other PersonSeller.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Seller contracts or does business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Seller and any of its Affiliates shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor Seller and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viiivi) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereofTake or refrain from taking, “Independent Director” shall mean any member as applicable, each of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided activities specified in the relevant Revolving Credit Agreement"non- substantive consolidation" opinion of Skadden, ensure that no Affiliate of such Transferor shall advance funds or loan money to such TransferorArps, and no Affiliate of such Transferor will otherwise guaranty debts of such TransferorSlate, Meagher & Flom delivered on the First Closing Xxte, xxxn which the conclusions expressed therein are based.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Pooling, Collateral Agency and Servicing Agreement (Newcourt Receivables Corp)
Separate Corporate Existence. Each Transferor of the Seller and the Servicer hereby acknowledges that Purchaser and the Agent are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller's identity as a legal entity separate from Servicer, Atrium and the Originators. Therefore, from and after the date hereof, the Seller and the Servicer shall take all reasonable steps to continue the Seller's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of Servicer, Atrium, the Originators and any other Person, and is not a securitization special purpose entity shalldivision of Servicer, Atrium or the Originators or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in PARAGRAPH (a) of this EXHIBIT IV, the Seller and the Servicer shall take such actions as shall be required in order that:
(i) Maintain in full effect its existence, rights and franchises as The Seller will be a limited liability company under purpose corporation whose sole activities are restricted in its certificate of incorporation to purchasing Receivables from the laws Originators, entering into agreements for the servicing of the state of its formation or such Receivables, selling undivided interests in such Receivables and conducting such other activities as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement it deems necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.carry out its primary purpose;
(ii) Except Not less than one member of Seller's Board of Directors (the "INDEPENDENT DIRECTORS") shall be individuals who are not (except as members of Seller's Board of Directors) direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of Seller, Servicer or any Originator or any of their respective Affiliates. The Seller's Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors' fiduciary duty shall be to the Seller (and its creditors) and not to the Seller's shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this CLAUSE (II) or any individual who has any other type of professional relationship with Seller, Servicer or any Originator or any of their respective Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for any Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller's own bank accounts for services provided to the Seller except as provided herein in this Agreementrespect of the Servicer's Fee. The Seller will engage no agents other than a servicer for the Receivables, maintain which servicer will be fully compensated for its services to the Seller by payment of the Servicer's Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originators or any Affiliate thereof which are not reflected in the Servicer's Fee or otherwise appropriately allocated between such Persons based on usage in accordance with the next sentence. To the extent, if any, that the Seller and the Originators or any Affiliate thereof share items of expenses not reflected in the Servicer's Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Atrium shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller's operating expenses will not be paid by any Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person promptly to reimburse such Person for any such payments;
(vii) The Seller will have its own deposit, securities separate mailing address and other account or accounts, separate stationery;
(viii) The Seller's books and records will be maintained separately from those of Servicer, Atrium and the Originators or any respective Affiliate thereof;
(ix) Any financial statements of such TransferorServicer, with financial institutions. Atrium, any Originator or any respective Affiliate thereof which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller's accounts receivable;
(x) The funds Seller's assets will be maintained in a manner that identifies and segregates them from those of such Transferor will not be diverted to any other Person or for other than the company use of such TransferorServicer, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase AgreementAtrium, the Originators and any of their respective Affiliates;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Servicer, Atrium, the Originators and any respective Affiliate thereof, and funds or other assets of such Transferor shall the Seller will not be commingled with those of Servicer, Atrium, the Originators or any other Person.
(iii) Ensure that, to the extent that it shares the same officers respective Affiliate thereof. The Seller shall not maintain joint bank accounts or other employees as any of its members or other Affiliatesdepository accounts to which Servicer, Atrium, the salaries of and the expenses related to providing benefits to such officers and Originators or any respective Affiliate thereof (other employees shall be fairly allocated among such entities, and each such entity shall bear than Atrium in its fair share capacity as Servicer) has independent access. None of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all material transactions between such Transferor and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not Seller's funds will at any time been (x) an officerbe pooled with any funds of Servicer, agentAtrium, advisor, consultant, attorney, accountant, employee, member the Originators or shareholder of any respective Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.thereof;
(xii) Other than organizational expenses The Seller shall pay to the Originators the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as expressly provided hereina direct or contingent beneficiary or loss payee, pay all expensesunder any such insurance policy, indebtedness and other obligations incurred by it using its own funds.with respect to any amounts payable due to occurrences or events related to Servicer, Atrium, the Originators or any respective Affiliate thereof; and
(xiii) Not enter into The Seller will maintain arm's length relationships with Servicer, Atrium, the Originators and any guarantyrespective Affiliate thereof and, except as contemplated by the Transaction Documents, will have no other dealings, contractual, financial or otherwise, among themselves. Any Originator or any Affiliate thereof that renders or otherwise become liable, with respect furnishes services to the Seller will be compensated by the Seller at market rates for such services (except in the case of any Originator acting as a Sub-Servicer whose fee is payable by the Servicer out of the Servicing Fee). Neither the Seller nor any Originator or any Affiliate thereof will be or will hold its assets or creditworthiness itself out as being available to be responsible for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect debts of the transactions between such Transferor other or the decisions or actions respecting the daily business and such Affiliate and also state that the assets of such Transferor are not available to pay creditors affairs of the Affiliateother.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Atrium Companies Inc)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided set forth in this Agreementthe Transaction Documents, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial institutions. The commercial banking institutions and ensure that the funds of such Transferor the Company will not be diverted to any other Person or for other than corporate uses of the company use of Company, nor will such Transferor, and, except as may funds be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, commingled with the funds of such Transferor a Seller or any Subsidiary or Affiliate of a Seller provided that the foregoing restriction shall not be commingled with those preclude the Company from lending its excess cash balances to a Seller or any Subsidiary or Affiliate of the Seller for investment (which may include inter-Affiliate loans made by the Seller or any other Person.Subsidiary or Affiliate of the Seller) on a pooled basis as part of the cash management system maintained by a Seller for its consolidated group so long as all such transactions are properly reflected on the books and records of the Company and the Sellers (and any Subsidiary or Affiliate of the Sellers, if applicable);
(iiiii) Ensure that, to To the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.;
(iviii) Ensure that, to To the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Company contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and or services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor the Company and any of its Affiliates Affiliates, whether currently existing or hereafter entered into, shall be only on an arm’s-arm’s length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.basis;
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number space separate from those the office space of its members the Sellers and other their Affiliates (but which may be located at the same address as a Seller or one of a Seller’s Affiliates). To the extent that such Transferor the Company and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.;
(viiv) Issue separate financial statements prepared not less frequently than annually and prepared in accordance with GAAP;
(vi) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws organizational documents and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special membersstockholders’ and directors’ , meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.;
(vii) Not assume or guarantee any of the liabilities of the Sellers, the Servicer or any Affiliate thereof; and
(viii) Ensure Take, or refrain from taking, as the case may be, all other actions that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is are necessary to be taken or not and has not at any time been to be taken in order to (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct with respect to the Company and (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as those procedures described in such consolidated reports contain footnotes describing provisions which are applicable to the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the AffiliateCompany.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Pooling Agreement (Bunge LTD)
Separate Corporate Existence. Each The Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial institutions. The commercial banking institutions and use its commercially reasonable efforts to ensure that the funds of such the Transferor will not be diverted to any other Person or for other than corporate uses of the company use of such Transferor, andTransferor and that, except as may be expressly permitted contemplated by this Agreement or the applicable Receivables Purchase Agreement, the Section 6.02(b) such funds of such Transferor shall will not be commingled with those the funds of any other Person.Seller or any Subsidiary or Affiliate of the Sellers;
(iiiii) Ensure that, to To the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, fairly allocate among such entities the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entitiesemployees, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.;
(iviii) Ensure that, to To the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, fairly allocate among such entities the costs incurred in so doing shall be allocated fairly among such entitiesdoing, and each such entity shall bear its fair share of such costs. To the extent that such the Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and or services are provided, and each such entity shall bear its fair share of such costs.;
(viv) Ensure that Enter into all material transactions between such the Transferor and any of its Affiliates shall be Affiliates, whether currently existing or hereafter entered into, only on an arm’s-arm’s length basis basis, it being understood and shall not be on terms more favorable to either party than agreed that the terms that would be found transactions contemplated in a similar transaction involving unrelated third parties.the Transaction Documents meet the requirements of this clause (iv);
(viv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number space separate from those the office space of its members the Sellers and other Affiliatesany Affiliates of the Sellers. To the extent that such the Transferor and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.;
(vi) Issue separate unaudited financial statements prepared not less frequently than quarterly and prepared in accordance with GAAP consistently applied;
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special membersstockholders’ and directors’ meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.;
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member Not assume or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of guarantee any of the foregoing).liabilities of the Sellers or any Affiliate thereof;
(ix) Ensure Take, or refrain from taking, as the case may be, all other actions that decisions are necessary to be taken or not to be taken in order to (x) ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct with respect to its business the Transferor and daily operations shall be independently made by (y) comply with those procedures described in such Transferor (although provisions which are applicable to the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.;
(x) Act solely in its own company name and through its own authorized officers and agentsTake such actions as are necessary to ensure that not less than one member of Transferor’s Board of Directors shall be an individual who (1) is not, and no Affiliate never has been, a direct, indirect or beneficial stockholder, officer, director, employee, affiliate, associate, material supplier or material customer of the Collection Agent or any of its Affiliates, and (2) has experience as an independent director for a corporation whose charter documents required the unanimous consent of all independent directors thereof before such corporation could consent to the institution of bankruptcy or insolvency proceedings against it or before it could file a petition seeking relief under any applicable federal or state law relating to bankruptcy or insolvency, and (3) has at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities (the “Independent Directors”). The certificate of incorporation of the Transferor shall provide that (i) at least one member of the Transferor’s Board of Directors shall be an Independent Director, (ii) the Transferor’s Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Transferor unless a unanimous vote of the Transferor’s Board of Directors (which vote shall include the affirmative vote of each Independent Director) shall approve the taking of such Transferor shall be appointed action in writing prior to act as agent the taking of such Transferor. Such Transferor shall at all times use its own stationery action and business forms (iii) the provisions requiring an independent director and describe itself as a separate legal entity.the provision described in clauses (i) and (ii) of this paragraph (x) cannot be amended without the prior written consent of each Independent Director;
(xi) Other than Take such actions as provided are necessary to ensure that no Independent Director shall at any time serve as a trustee in bankruptcy for the Transferor or any Affiliate thereof;
(xii) Take such actions as are necessary to ensure that the books of account, financial reports and corporate records of the Transferor will be maintained separately from those of Tyson and each other Affiliate of the Transferor;
(xiii) Take such actions as are necessary to ensure that any financial statements of Tyson or any Affiliate thereof which are consolidated to include the Transferor will contain detailed notes clearly stating that (A) all of the Transferor’s assets are owned by the Transferor, and (B) the Transferor is a separate corporate entity with its own separate creditors that will be entitled to be satisfied out of the Transferor’s assets prior to any value in the relevant Revolving Credit AgreementTransferor becoming available to the Transferor’s equity holders; and the accounting records of the Sellers will clearly show that, for accounting purposes, the Receivables and Related Security have been sold to the Transferor;
(xiv) Take such actions as are necessary to ensure that the Transferor’s assets will be maintained in a manner that facilitates their identification and segregation from those of Tyson, the Sellers and other Affiliates of Tyson;
(xv) Take such actions as are necessary to ensure that no Affiliates of the Transferor shall, directly or indirectly, name the Transferor or enter into any agreement to name the Transferor a direct or contingent beneficiary or loss payee or any insurance policy covering the property of any such Affiliate; and
(xvi) Take such actions as are necessary to ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such the Transferor will otherwise guaranty be, nor will hold itself out to be, responsible for the debts of such the Transferor or the decisions or actions in respect of the daily business and affairs of the Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into . The Transferor will immediately correct any guaranty, or otherwise become liable, known misrepresentation with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such foregoing, and the Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long will not operate or purport to operate as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available an integrated single economic unit with respect to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement each other or in its certificate of incorporation and bylawstheir dealing with any other entity.
Appears in 1 contract
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Trust Depositor shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Trust Depositor will not be diverted to any other Person or for other than corporate uses of the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other PersonTrust Depositor.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Trust Depositor contracts or does business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Trust Depositor and any of its Affiliates shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor the Trust Depositor and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viiivi) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereofTake or refrain from taking, “Independent Director” shall mean any member as applicable, each of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided activities specified in the relevant Revolving Credit Agreement"substantive consolidation" opinion of Sullxxxx & Xromxxxx, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferorxxlivered on the Closing Date, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferorupon which the conclusions expressed therein are based.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Orix Credit Alliance Receivables Trust 2000 B)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(iia) Except as provided set forth in this Agreementthe Transaction Documents, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial institutions. The commercial banking institutions and ensure that the funds of such Transferor the Company will not be diverted to any other Person or for other than corporate uses of the company use of Company, nor will such Transferor, and, except as may funds be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, commingled with the funds of such Transferor a Seller or any Subsidiary or Affiliate of a Seller provided that the foregoing restriction shall not be commingled with those preclude the Company from lending its excess cash balances to a Seller or any Subsidiary or Affiliate of the Seller for investment (which may include inter-Affiliate loans made by the Seller or any other Person.Subsidiary or Affiliate of the Seller) on a pooled basis as part of the cash management system maintained by a Seller for its consolidated group so long as all such transactions are properly reflected on the books and records of the Company and the Sellers (and any Subsidiary or Affiliate of the Sellers, if applicable);
(iiib) Ensure that, to To the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.;
(ivc) Ensure that, to To the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Company contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and or services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor the Company and any of its Affiliates Affiliates, whether currently existing or hereafter entered into, shall be only on an arm’s-arm’s length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.basis;
(vid) Maintain a principal executive and administrative office through which its business is conducted and a telephone number space separate from those the office space of its members the Sellers and other their Affiliates (but which may be located at the same address as a Seller or one of a Seller’s Affiliates). To the extent that such Transferor the Company and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.;
(viie) Issue separate financial statements prepared not less frequently than annually and prepared in accordance with GAAP;
(f) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws organizational documents and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special membersstockholders’ and directors’ , meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.;
(viiig) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean Not assume or guarantee any member of the board liabilities of directors of such Transferor the Sellers, the Servicer or any Affiliate thereof; and
(h) Take, or refrain from taking, as the case may be, all other actions that is are necessary to be taken or not and has not at any time been to be taken in order to (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct with respect to the Company and (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as those procedures described in such consolidated reports contain footnotes describing provisions which are applicable to the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the AffiliateCompany.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Pooling Agreement (Bungeltd)
Separate Corporate Existence. Each Transferor and IKON Capital ---------------------------- hereby acknowledge that the Transferee and the Agent are entering into the transactions contemplated by this Agreement in reliance upon the Transferor's identity as a legal entity separate from the other Affiliated Parties. Therefore, Transferor and IKON Capital shall take the steps described in this Section 7.04 and any other steps that the Agent reasonably requests to continue ------------ the Transferor's identity as such a separate legal entity and to make it apparent to third Persons that the Transferor is an entity with assets and liabilities distinct from those of the other Affiliated Parties and those of any other Person, and not a division of the other Affiliated Parties or any other Person:
(a) The Transferor will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to accepting transferred Receivables from IKON Capital, entering into agreements for the servicing of such Receivables, transferring undivided interests in the Receivables, and conducting such other activities as it reasonably deems necessary or appropriate to carry out its primary activities and entering into similar arrangements with other Persons;
(b) No director or officer of the Transferor shall at any time serve as a trustee in bankruptcy for any other Affiliated Party;
(c) Any employee, consultant or agent of the Transferor will be paid by the Manager for services provided to the Transferor, which payment shall be charged to Transferor's account, except as provided in this Agreement in respect of the Servicing Fee and in the Old Line Agreement for the servicing fee paid thereunder. The Transferor will engage no agents other than a Servicer for the Receivables, which Servicer (if an Affiliated Party) will be fully compensated for its services to the Transferor by payment of the Servicing Fee and the servicing fee paid under the Old Line Agreement, and the Manager pursuant to the Management Agreement, which Manager's fees shall not exceed $10,000 in any calendar year;
(d) The Transferor's operating expenses will not be paid by any other Affiliated Party;
(e) The Transferor will have its own separate mailing address, stationery and, if used, bank checks and, if it uses premises leased, owned or occupied by any other Affiliated Party, its portion of such premises will be defined and separately identified;
(f) The Transferor's books and records will be maintained separately from those of every other Affiliated Party;
(g) Any financial statements of any other Affiliated Party which are consolidated to include the Transferor will contain detailed notes clearly stating that (A) all of the Transferor's assets are owned by the Transferor, and (B) the Transferor is a securitization special purpose separate corporate entity shall:with its own separate creditors which will be entitled to be satisfied out of the Transferor's assets prior to any value in the Transferor becoming available to the Transferor's equity holders;
(h) The assets of the Transferor will be maintained in a manner that facilitates their identification and segregation from those of any other Affiliated Party;
(i) Maintain The Transferor will strictly observe corporate formalities in full effect its existencedealings with each other Affiliated Party, rights and franchises as a limited liability company under the laws funds or other assets of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other account or accounts, separate from those of any Affiliate of such Transferor, with financial institutions. The funds of such Transferor will not be diverted to any other Person commingled or for other than the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled pooled with those of any other Person.Affiliated Party;
(iiij) Ensure that, to the extent that it shares the same officers The Transferor shall not maintain joint bank accounts with any other Affiliated Party or other employees depository accounts to which any other Affiliated Party (other than IKON Capital in its capacity as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.Servicer) has independent access;
(ivk) Ensure thatThe Transferor shall not, directly or indirectly, be named and shall not enter into any agreement to be named as a direct or contingent beneficiary or loss payee on any insurance policy covering the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit property of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.Affiliated Party;
(vl) Ensure that all material transactions between The Transferor will maintain arm's length relationships with each other Affiliated Party. Any other Affiliated Party which renders or otherwise furnishes services or merchandise to the Transferor will be compensated by the Transferor at market rates for such Transferor and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.services or merchandise; and
(vim) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and Neither the Transferor, on the one hand, nor any other Affiliates. To Affiliated Party, on the extent that such Transferor and any of its members other hand, will be or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or will hold itself out to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (responsible for purposes hereof, “Independent Director” shall mean any member the debts of the board of directors of such Transferor that is not other or the decisions or actions respecting the daily business and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member affairs of the immediate family of any of the foregoing)other.
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Receivables Transfer Agreement (Ikon Office Solutions Inc)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Club Trustee shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Club Trustee will not be diverted to any other Person or for other than trust or corporate uses of the company use of such TransferorClub Trustee, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Personapplicable.
(iiiii) Ensure ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders, beneficiaries or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure ensure that, to the extent that it the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts the Club Trustee and the Servicer (together with their respective stockholders or does Affiliates) do business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Club Trustee and any of its Affiliates shall be only on an arm’s-arms’ length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To to the extent that such Transferor the Club Trustee and any of its members stockholders, beneficiaries or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement the Club Trust Agreement or its certificate amended and restated articles of incorporation and bylaws incorporation, as applicable, and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special membersstockholders’, trustees’, collateral agents’ and directors’ meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Note Purchase Agreement (Stratstone/Bluegreen Secured Income Fund, LLC)
Separate Corporate Existence. Each Transferor Seller hereby acknowledges ---------------------------- that Purchaser, the Liquidity Banks and the Administrator, are entering into the transactions contemplated by the Transaction Documents in reliance upon Seller's identity as a legal entity separate from Parent. Therefore, from and after the date hereof, Seller shall take all steps specifically required by this Agreement or by the Purchaser or Administrator to continue Seller's identity as a separate legal entity and to make it apparent to third Persons that Seller is an entity with assets and liabilities distinct from those of Parent and any other Person, and is not a securitization special division of Parent or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, Seller shall take such actions as shall be required in order that:
(a) Seller will be a limited purpose entity shall:corporation whose primary activities are restricted in its certificate of incorporation to purchasing or otherwise acquiring from Parent, and owning, holding, granting security interests, or selling interests, in Pool Assets, entering into agreements for the servicing and financing of Pool Assets, entering into interest rate agreements, spread account agreements and similar documents and conducting such other activities as it deems necessary or appropriate to carry out its primary activities.
(b) Not less than one member of Seller's Board of Directors (the "Independent Director") shall be an individual who is not a -------------------- direct, indirect or beneficial stockholder, officer, director, employee, affiliate, associate, or supplier of Seller or any of its Affiliates, except that the Independent Director may be an independent director on the Board of Directors of a direct or indirect "bankruptcy remote" subsidiary of Charming Shoppes. The certificate of incorporation of Seller shall provide that (i) Seller's Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to Seller unless the Independent Director shall approve the taking of such action in writing prior to the taking of such action and (ii) such provision cannot be amended without the prior written consent of the Independent Director.
(c) The Independent Director shall not at any time serve as a trustee in bankruptcy for Seller, Parent or any Affiliate thereof.
(d) Any employee, consultant or agent of Seller will be compensated from Seller's funds for services provided to Seller. Seller will engage no agents other than its attorneys, auditors and other professionals, and a servicer for Pool Assets, which servicer will be fully compensated for its services by payment of the Servicer's Fee.
(e) Seller will contract with Servicer to perform for Seller all operations required on a daily basis to service the Pool Assets. Seller will pay Servicer the Servicer's Fee pursuant hereto. Seller will not incur any material indirect or overhead expenses for items shared between Seller and Parent (or any other Affiliate thereof) which are not reflected in the Servicer's Fee. To the extent, if any, that Seller and Parent (or any other Affiliate thereof) share items of expenses not reflected in the Servicer's Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Parent shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal, agency and other fees.
(f) Seller will pay its own operating expenses.
(g) Seller will have its own separate post office box and stationery.
(h) Seller's books and records will be maintained separately from those of Parent and any other Affiliate thereof.
(i) Maintain All financial statements of Parent or any Affiliate thereof that are consolidated to include Seller will contain detailed notes clearly stating that (A) all of Seller's assets are owned by Seller, and (B) Seller is a separate corporate entity with creditors who have received security interests in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated herebySeller's assets.
(iij) Except as provided Seller's assets will be maintained in this Agreement, maintain its own deposit, securities a manner that facilitates their identification and other account or accounts, separate segregation from those of Parent or any Affiliate thereof.
(k) Seller will strictly observe corporate formalities in its dealings with Parent or any Affiliate thereof, and funds or other assets of such Transferor, with financial institutions. The funds of such Transferor Seller will not be diverted to any other Person or for other than the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of Parent or any Affiliate thereof. Seller shall not maintain joint bank accounts or other Persondepository accounts to which Parent or any Affiliate thereof (other than Parent in its capacity as Servicer) has independent access.
(iiil) Ensure that, Seller will maintain arm's-length relationships with Parent (and any Affiliate thereof). Any Person that renders or otherwise furnishes services to Seller will be compensated by Seller at market rates for such services it renders or otherwise furnishes to Seller. Except as contemplated in the extent that it shares Transaction Documents neither Seller nor Parent will be or will hold itself out to be responsible for the same officers or other employees as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share debts of the salary other or the decisions or actions respecting the daily business and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all material transactions between such Transferor and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing)other.
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Charming Shoppes Inc)
Separate Corporate Existence. Each Such Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable any Receivables Purchase Transfer Agreement to which it is a party and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain Maintain its own deposit, bank or securities and other account or accounts, separate from those of any Affiliate of such Transferor, with commercial financial institutions. The funds and other property of such Transferor will not be diverted to any other Person or for other than the company corporate use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable any Receivables Purchase AgreementTransfer Agreement to which it is a party, the funds and other property of such Transferor shall not be commingled with those of any other PersonAffiliate of such Transferor.
(iii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor and any of its Affiliates shall be only on an arm’sarm's-length basis and shall not be on terms more favorable to either party than receive the terms that would be found in a similar transaction involving unrelated third partiesapproval of such Transferor's Board of Directors including at least one Independent Director (defined below).
(viv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members stockholders and other Affiliates. To the extent that such Transferor and any of its members stockholders or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viivi) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ stockholders' and directors’ ' meetings shall be held at least annually.
(viiivii) Ensure that its board Board of directors Directors shall at all times include at least one Independent Director (for purposes hereofon the Initial Closing date and, “Independent Director” shall mean any member within 30 days of the board of directors of such Transferor that is not Initial Closing Date and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreementthereafter, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.two
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Travelers Bank Credit Card Master Trust I)
Separate Corporate Existence. Each Such Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable any Receivables Purchase Transfer Agreement to which it is a party and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain Maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such Transferor, with financial commercial banking institutions. The funds of such Transferor will not be diverted to any other Person or for other than the company corporate use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable any Receivables Purchase AgreementTransfer Agreement to which it is a party, the funds of such Transferor shall not be commingled with those of any other PersonAffiliate of such Transferor.
(iii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor and any of its Affiliates shall be only on an arm’sarm's-length basis and shall not be on terms more favorable to either party than receive the terms that would be found in a similar transaction involving unrelated third partiesapproval of such Transferor's Board of Directors including at least one Independent Director (defined below).
(viv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members stockholders and other Affiliates. To the extent that such Transferor and any of its members stockholders or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viivi) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ stockholders' and directors’ ' meetings shall be held at least annually.
(viiivii) Ensure that its board Board of directors Directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” "INDEPENDENT DIRECTOR" shall mean any member of the board Board of directors Directors of such Transferor that is not and has not at any time during the preceding five years been (x) an a director, officer, consultant, agent, advisor, consultant, attorney, accountant, employee, member affiliate or shareholder of any Affiliate of such Transferor which or any affiliate or subsidiary thereof, or of any major creditor thereof, and who is not a special purpose entitythe beneficial owner, (y) a director at the time of any such individual's appointment as an Independent Director, of more than 1,000 shares in the aggregate of all classes of common stock of an Affiliate of such Transferor other Transferor, or if greater, such number of shares the value of which constitutes no more than an independent director 10% of any Affiliate which is a special purpose entity such individual's net worth or (zy) a member of the immediate family of any of the foregoing).
(ixviii) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(xix) Act solely in its own company corporate name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor, except as expressly contemplated by this Agreement or any Receivables Agreement to which it is a party. Such The Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entitystationery.
(xix) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of, such Transferor; PROVIDED, HOWEVER, that an Affiliate of such Transferor may provide funds to such Transferor in connection with the capitalization of such Transferor, including capital necessary to assure that such Transferor has "substantial assets" as described in Treasury Regulation Section 301.7701-2(d)(2).
(xiixi) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own fundsit.
(xiiixii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor other than with respect to Section 7.04, nor shall such Transferor make any loans to any Person.
(xivxiii) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the AffiliateAffiliates.
(xvxiv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate Certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylawsIncorporation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Travelers Bank Credit Card Master Trust I)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Club Trustee shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Club Trustee will not be diverted to any other Person or for other than trust or corporate uses of the company use of such TransferorClub Trustee, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Personapplicable.
(iiiii) Ensure ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders, beneficiaries or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure ensure that, to the extent that it the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts the Club Trustee and the Servicer (together with their respective shareholders or does Affiliates) do business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Club Trustee and any of its Affiliates shall be only on an arm’s-arms’ length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To to the extent that such Transferor the Club Trustee and any of its members stockholders, beneficiaries or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement the Club Trust Agreement or its certificate amended and restated articles of incorporation and bylaws incorporation, as applicable, and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special membersshareholders’, trustees’ and directors’ meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and 87 separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Indenture (BFC Financial Corp)
Separate Corporate Existence. Each Transferor of the Seller and the Servicer hereby acknowledges that Purchaser and the Agent are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller's identity as a legal entity separate from the Servicer and the Originator. Therefore, from and after the date hereof, the Seller and the Servicer shall take all reasonable steps to continue the Seller's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of the Servicer, the Originator and any other Person, and is not a securitization special purpose entity shalldivision of the Servicer or the Originator or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in PARAGRAPH (a) of this EXHIBIT IV, the Seller and the Servicer shall take such actions as shall be required in order that:
(i) Maintain in full effect its existence, rights and franchises as The Seller will be a limited liability company under purpose corporation whose primary activities are restricted in its certificate of incorporation to purchasing Receivables from the laws Originator, entering into agreements for the servicing of the state of its formation or such Receivables, selling undivided interests in such Receivables and conducting such other activities as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement it deems necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.carry out its primary activities;
(ii) Except Not less than one member of Seller's Board of Directors (the "INDEPENDENT DIRECTORS") shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller's Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors' fiduciary duty shall be to the Seller (and creditors) and not to the Seller's shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this CLAUSE (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller's own bank accounts for services provided to the Seller except as provided herein in this Agreementrespect of the Servicer's Fee. The Seller will engage no agents other than a Servicer for the Receivables, maintain which Servicer will be fully compensated for its services to the Seller by payment of the Servicer's Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicer's Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicer's Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller's operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own deposit, securities separate mailing address and other account or accounts, separate stationery;
(viii) The Seller's books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of such Transferorthe Originator or any Affiliate thereof which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller's accounts receivable;
(x) The Seller's assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, with financial institutions. The and funds or other assets of such Transferor the Seller will not be diverted to any other Person or for other than the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of the Originator or any other Person.
(iii) Ensure that, to the extent that it shares the same officers Affiliate thereof. The Seller shall not maintain joint bank accounts or other employees depository accounts to which the Originator or any Affiliate thereof (other than Vanstar in its capacity as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share Servicer) has independent access. None of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all material transactions between such Transferor and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not Seller's funds will at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member be pooled with any funds of the Originator or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.thereof;
(xii) Other than organizational expenses The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as expressly provided hereina direct or contingent beneficiary or loss payee, pay all expensesunder any such insurance policy, indebtedness and other obligations incurred by it using its own funds.with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof; and
(xiii) Not enter into The Seller will maintain arm's length relationships with the Originator and any guaranty, Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise become liable, with respect furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor any Originator or any Affiliate thereof will be or will hold its assets or creditworthiness itself out as being available to be responsible for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect debts of the transactions between such Transferor other or the decisions or actions respecting the daily business and such Affiliate and also state that the assets of such Transferor are not available to pay creditors affairs of the Affiliateother.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Separate Corporate Existence. Each Such Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its organization or incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement, the Trust Agreement and the applicable any Receivables Purchase Agreement to which it is a party and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreementherein, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such Transferor, with financial commercial banking institutions. The funds of such Transferor will not be diverted to any other Person or for other than the company corporate use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable any Receivables Purchase AgreementAgreement to which it is a party, the funds of such Transferor shall not be commingled with those of any Affiliate of such Transferor or any other Person.
(iii) Ensure that, to the extent that it shares the same officers or other employees as any of its members partners, members, managers, stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members partners, members, managers, stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor and any of its partners, members, managers, stockholders or Affiliates shall be only on an arm’sarm's-length basis and shall not be on terms more favorable to either party than receive the terms that would be found in a similar transaction involving unrelated third partiesapproval of such Transferor's Board of Directors, partners, members, managers or other governing body including at least one Independent Director (defined below).
(viv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members members, stockholders and other Affiliates. To the extent that such Transferor and any of its members members, stockholders or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viivi) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement incorporation or its other certificate of incorporation and bylaws formation, as the case may be, and observe all necessary, appropriate and customary company formalitiescorporate formalities (or such formalities appropriate to the entity), including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' or partners', members' or managers', as the case may be, meetings appropriate to authorize all corporate or entity action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ stockholders' or other owners' and directors’ ', partners', members' or managers', as the case may be, meetings shall be held at least annually.
(viiivii) Ensure that its board of directors or other governing body shall at all times include at least one Independent Director (for purposes hereof, “"Independent Director” " shall mean any member of the board of directors or partner, member or manager, as the case may be, of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member employee or shareholder of any Affiliate of such Transferor which Affiliate is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Compucredit Corp)
Separate Corporate Existence. Each The Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial institutions. The commercial banking institutions and use its commercially reasonable efforts to ensure that the funds of such the Transferor will not be diverted to any other Person or for other than corporate uses of the company use of such Transferor, andTransferor and that, except as may be expressly permitted contemplated by this Agreement or the applicable Receivables Purchase Agreement, the Section 6.02(b) such funds of such Transferor shall will not be commingled with those the funds of any other Person.Seller or any Subsidiary or Affiliate of the Sellers;
(iiiii) Ensure that, to To the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, fairly allocate among such entities the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entitiesemployees, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.;
(iviii) Ensure that, to To the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, fairly allocate among such entities the costs incurred in so doing shall be allocated fairly among such entitiesdoing, and each such entity shall bear its fair share of such costs. To the extent that such the Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and or services are provided, and each such entity shall bear its fair share of such costs.;
(viv) Ensure that Enter into all material transactions between such the Transferor and any of its Affiliates shall be Affiliates, whether currently existing or hereafter entered into, only on an arm’s-arm's length basis basis, it being understood and shall not be on terms more favorable to either party than agreed that the terms that would be found transactions contemplated in a similar transaction involving unrelated third parties.the Transaction Documents meet the requirements of this clause (iv);
(viv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number space separate from those the office space of its members the Sellers and other Affiliatesany Affiliates of the Sellers. To the extent that such the Transferor and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.;
(vi) Issue separate financial statements prepared not less frequently than quarterly and prepared in accordance with GAAP;
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.;
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member Not assume or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of guarantee any of the foregoing).liabilities of the Sellers or any Affiliate thereof;
(ix) Ensure Take, or refrain from taking, as the case may be, all other actions that decisions are necessary to be taken or not to be taken in order to (x) ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct with respect to its business the Transferor and daily operations shall be independently made by (y) comply with those procedures described in such Transferor (although provisions which are applicable to the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.;
(x) Act solely in its own company name and through its own authorized officers and agentsTake such actions as are necessary to ensure that not less than one member of Transferor's Board of Directors shall be an individual who is not, and no Affiliate never has been, a direct, indirect or beneficial stockholder, officer, director, employee, affiliate, associate, material supplier or material customer of the Collection Agent or any of its Affiliates (other than an Independent Director of MTSPC, Inc.) (the "Independent Direc- tors"). The certificate of incorporation of the Transferor shall provide that (i) at least one member of the Transferor's Board of Directors shall be an Independent Director, (ii) the Transferor's Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Transferor unless a unanimous vote of the Transferor's Board of Directors (which vote shall include the affirmative vote of each Independent Director) shall approve the taking of such Transferor shall be appointed action in writing prior to act as agent the taking of such Transferor. Such Transferor shall at all times use its own stationery action and business forms (iii) the provisions requiring an independent director and describe itself as a separate legal entity.the provision described in clauses (i) and (ii) of this paragraph (b) cannot be amended without the prior written consent of each Independent Director;
(xi) Other than Take such actions as provided are necessary to ensure that no Independent Director shall at any time serve as a trustee in bankruptcy for the Transferor or any Affiliate thereof;
(xii) Take such actions as are necessary to ensure that the books of account, financial reports and corporate records of the Transferor will be maintained separately from those of the Parent and each other Affiliate of the Transferor;
(xiii) Take such actions as are necessary to ensure that any financial statements of Parent or Affiliate thereof which are consolidated to include the Transferor will contain detailed notes clearly stating that (A) all of the Transferor's assets are owned by the Transferor, and (B) the Transferor is a separate corporate entity with its own separate creditors that will be entitled to be satisfied out of the Transferor's assets prior to any value in the relevant Revolving Credit AgreementTransferor becoming available to the Transferor's equity holders; and the accounting records and the published financial statements of the Sellers will clearly show that, for accounting purposes, the Receivables and Related Security have been sold to the Transferor;
(xiv) Take such actions as are necessary to ensure that the Transferor's assets will be maintained in a manner that facilitates their identification and segregation from those of the Parent, the Sellers and other Affiliates of the Parent;
(xv) Take such actions as are necessary to ensure that no Affiliates of the Transferor shall, directly or indirectly, name the Transferor or enter into any agreement to name the Transferor a direct or contingent beneficiary or loss payee or any insurance policy covering the property of any such Affiliate; and
(xvi) Take such actions as are necessary to ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such the Transferor will otherwise guaranty be, nor will hold itself out to be, responsible for the debts of such the Transferor or the decisions or actions in respect of the daily business and affairs of the Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into . The Transferor will immediately correct any guaranty, or otherwise become liable, known misrepresentation with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such foregoing, and the Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long will not operate or purport to operate as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available an integrated single economic unit with respect to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement each other or in its certificate of incorporation and bylawstheir dealing with any other entity.
Appears in 1 contract
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Trust Depositor shall:
(ia) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, or cause such accounts to be maintained on its behalf, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Trust Depositor will not be diverted to any other Person or for other than corporate uses of the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other PersonTrust Depositor.
(iiib) Ensure that, to the extent that it shares the same officers or other employees as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(ivc) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Trust Depositor contracts or does business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Trust Depositor and any of its Affiliates shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(vid) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor the Trust Depositor and any of its members or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viie) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annuallyagreement.
(viiif) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereofTake or refrain from taking, “Independent Director” shall mean any member as applicable, each of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided activities specified in the relevant Revolving Credit Agreement"substantive consolidation" opinion of Xxxxxx, ensure that no Affiliate of such Transferor shall advance funds or loan money to such TransferorXxxxx & Xxxxxxx LLP, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferordelivered on the Closing Date, upon which the conclusions expressed therein are based.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Fidelity Leasing Inc)
Separate Corporate Existence. Each If the Transferor that is an entity which is eligible to be a securitization special purpose entity debtor in a case under the Bankruptcy Code, such Transferor shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its organization or incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement, the Trust Agreement and the applicable any Receivables Purchase Agreement to which it is a party and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreementherein, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such Transferor, with financial commercial banking institutions. The funds of such Transferor will not be diverted to any other Person or used for other than the company corporate use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable any Receivables Purchase AgreementAgreement to which it is a party, the funds of such Transferor shall not be commingled with those of any Affiliate of such Transferor or any other Person.
(iii) Ensure that, to the extent that it shares the same officers or other employees as any of its members partners, members, managers, stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members partners, members, managers, stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor and any of its partners, members, managers, stockholders or Affiliates shall be only on an arm’sarm's-length basis and shall not be on terms more favorable to either party than receive the terms that would be found in a similar transaction involving unrelated third partiesapproval of such Transferor's board of directors, partners, members, managers or other governing body including at least one Independent Director (defined below).
(viv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members members, stockholders and other Affiliates. To the extent that such Transferor and any of its members members, stockholders or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viivi) Conduct its affairs strictly in accordance with its articles of incorporation or other certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws formation, as the case may be, and observe all necessary, appropriate and customary company formalitiescorporate formalities (or such formalities appropriate to the entity), including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' or partners', members' or managers', as the case may be, meetings appropriate to authorize all corporate or entity action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ stockholders' or other owners' and directors’ ', partners', members' or managers', as the case may be, meetings shall be held at least annually.
(viiivii) Ensure that its board of directors or other governing body shall at all times include at least one Independent Director Director; and ensure that the articles of incorporation or other organizational documents provide that (for purposes hereof, “Independent Director” shall mean any member of x) the Transferor's board of directors shall not approve, or take any other action to cause the filing of a voluntary bankruptcy petition with respect to the Transferor unless the Independent Director shall vote affirmatively to approve such action, and (y) such provision cannot be amended without the prior vote of the Independent Director in favor of such Transferor that is not and has amendment.
(viii) The Independent Director shall not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member serve as a trustee in bankruptcy for the Transferor or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing)thereof.
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer officer, partner, member, manager or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company corporate or entity name and through its own authorized officers officers, partners, members, managers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure Ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using with its own funds.
(xiii) Not Except as contemplated by the Transaction Documents, not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor or of any other Person nor shall such Transferor make any loans to to, or incur any indebtedness in respect of, any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as Affiliates; provided, that any such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state shall indicate that the assets of such the Transferor are not available to pay the creditors of any Affiliate of the AffiliateTransferor.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate articles of incorporation and bylawsor other organizational documents.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Conseco Finance Credit Card Funding Corp)
Separate Corporate Existence. Each Transferor of the Seller and the Servicer hereby acknowledges that Purchaser and the Agent are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller's identity as a legal entity separate from the Servicer and the Originator. Therefore, from and after the date hereof, the Seller and the Servicer shall take all reasonable steps to continue the Seller's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of the Servicer, the Originator and any other Person, and is not a securitization special purpose entity shalldivision of the Servicer or the Originator or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in PARAGRAPH (a) of this EXHIBIT IV, the Seller and the Servicer shall take such actions as shall be required in order that:
(i) Maintain in full effect its existence, rights and franchises as The Seller will be a limited liability company under purpose corporation whose primary activities are restricted in its certificate of incorporation to purchasing Receivables from the laws Originator, entering into agreements for the servicing of the state of its formation or such Receivables, selling undivided interests in such Receivables and conducting such other activities as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement it deems necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.carry out its primary activities;
(ii) Except Not less than one member of Seller's Board of Directors (the "INDEPENDENT DIRECTORS") shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller's Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors' fiduciary duty shall be to the Seller (and creditors) and not to the Seller's shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this CLAUSE (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller's own bank accounts for services provided to the Seller except as provided herein in this Agreementrespect of the Servicer's Fee. The Seller will engage no agents other than a Servicer for the Receivables, maintain which Servicer will be fully compensated for its services to the Seller by payment of the Servicer's Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicer's Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicer's Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller's operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own deposit, securities separate mailing address and other account or accounts, separate stationery;
(viii) The Seller's books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of such Transferorthe Originator or any Affiliate thereof which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller's accounts receivable;
(x) The Seller's assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, with financial institutions. The and funds or other assets of such Transferor the Seller will not be diverted to any other Person or for other than the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of the Originator or any other Person.
(iii) Ensure that, to the extent that it shares the same officers Affiliate thereof. The Seller shall not maintain joint bank accounts or other employees depository accounts to which the Originator or any Affiliate thereof (other than SDW in its capacity as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share Servicer) has independent access. None of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all material transactions between such Transferor and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not Seller's funds will at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member be pooled with any funds of the Originator or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.thereof;
(xii) Other than organizational expenses The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as expressly provided hereina direct or contingent beneficiary or loss payee, pay all expensesunder any such insurance policy, indebtedness and other obligations incurred by it using its own funds.with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof; and
(xiii) Not enter into The Seller will maintain arm's length relationships with the Originator and any guaranty, Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise become liable, with respect furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor any Originator or any Affiliate thereof will be or will hold its assets or creditworthiness itself out as being available to be responsible for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect debts of the transactions between such Transferor other or the decisions or actions respecting the daily business and such Affiliate and also state that the assets of such Transferor are not available to pay creditors affairs of the Affiliateother.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Warren S D Co /Pa/)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Club Trustee shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Club Trustee will not be diverted to any other Person or for other than trust or corporate uses of the company use of such TransferorClub Trustee, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Person.applicable;
(iiiii) Ensure ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders, beneficiaries or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.;
(iviii) Ensure ensure that, to the extent that it the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts the Club Trustee and the Servicer (together with their respective shareholders or does Affiliates) do business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Club Trustee and any of its Affiliates shall be only on an arm’s-arms’ length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.basis;
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To to the extent that such Transferor the Club Trustee and any of its members stockholders, beneficiaries or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.; and
(viiv) Conduct conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement the Club Trust Agreement or its certificate amended and restated articles of incorporation and bylaws incorporation, as applicable, and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special membersshareholders’, trustees’ and directors’ meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.90
Appears in 1 contract
Samples: Indenture (BBX Capital Corp)
Separate Corporate Existence. Each The Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain Maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such the Transferor, with financial commercial banking institutions. The funds of such the Transferor will not be diverted to any other Person or for other than the company corporate use of such the Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such the Transferor shall not be commingled with those of any other PersonAffiliate of the Transferor.
(iii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such the Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such the Transferor and any of its Affiliates shall be only on an arm’sarm's-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members stockholders and other Affiliates. To the extent that such the Transferor and any of its members stockholders or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viivi) Conduct its affairs strictly in accordance with its certificate Articles of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ stockholders' and directors’ ' meetings shall be held at least annually.
(viiivii) Ensure that its board Board of directors Directors shall be elected independently from the Boards of Directors of its Affiliates and shall at all times include at least one Independent Director (for purposes hereof, “"Independent Director” " shall mean any member of the board Board of directors Directors of such the Transferor that who is not and has not at any time been (x) an a director, officer, agent, advisor, consultant, attorney, accountant, employee, member employee or shareholder of any Affiliate of the Transferor within a period of three years prior to such Transferor which is not a special purpose entity, Person's election to the Board of Directors or (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Target Receivables Corp)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and or other account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial institutions. The commercial banking institutions or broker-dealers and ensure that the funds of such Transferor the Company will not be diverted to any other Person or for other than corporate uses of the company use of Company, nor will such Transferor, and, except as may funds be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, commingled with the funds of such Transferor shall not be commingled with those any Seller or any other Subsidiary or Affiliate of any other Person.Seller;
(iiiii) Ensure that, to To the extent that it shares the same officers or other employees as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, to the extent practicable, on the basis of such entities' actual share of such costs and each to the extent such entity shall bear its allocation is not practicable, on a basis reasonably related to such entities' fair share of the salary and benefit costs associated with all such common officers and employees.;
(iviii) Ensure that, to To the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, to the extent practicable, on the basis of such entities' actual share of such costs and each to the extent such entity shall bear its allocation is not practicable, on a basis reasonably related to such entities' fair share of such costs. To the extent that such Transferor the Company contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and or services are provided, to the extent practicable, on the basis of such entities' actual share of such costs and each to the extent such entity shall bear its allocation is not practicable, on a basis reasonably related to such entities' fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor the Company and any of its Affiliates Affiliates, whether currently existing or hereafter entered into, shall be only on an arm’sarm's-length basis basis, it being understood and shall not be on terms more favorable to either party than agreed that the terms that would be found transactions contemplated in a similar transaction involving unrelated third parties.the Transaction Documents meet the requirements of this clause (iii);
(viiv) Maintain a principal executive office at a separate address from the address of United Stationers Supply Co. and administrative office through which its business is conducted and a telephone number Affiliates; PROVIDED that reasonably segregated offices in the same building shall constitute separate from those addresses for purposes of its members and other Affiliatesthis clause (iv). To the extent that such Transferor the Company and any of its members or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.;
(viiv) Issue separate financial statements prepared not less frequently than quarterly and prepared in accordance with GAAP;
(vi) Conduct its affairs in its own name and strictly in accordance with its certificate articles of formation and limited liability company agreement or its certificate of incorporation and bylaws association and observe all necessary, appropriate and customary limited liability company formalities, including, but not limited to, holding all regular and special members’ ' and directors’ ' meetings appropriate to authorize all limited liability company action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.;
(vii) Not assume or guarantee any of the liabilities of any Seller, any Servicing Party or any Affiliate of any thereof, it being understood that a shareholder's capital contribution is not such a guarantee or assumption; and
(viii) Ensure Take, or refrain from taking, as the case may be, all other actions that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is are necessary to be taken or not and has not at any time been to be taken in order to (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct in all material respects with respect to the Company and (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as those procedures described in such consolidated reports contain footnotes describing provisions which are applicable to the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the AffiliateCompany.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity shall:
(ia) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such Transferor, with financial institutions. The the Company and ensure that its funds of such Transferor will not be diverted to any other Person or for other than the company use of Company, nor will such Transferor, and, except as may funds be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, commingled with the funds of such Transferor shall not be commingled with those of any other Person.the Company;
(iiib) Ensure that, to To the extent that it shares the same any officers or other employees as any of its members or other Affiliateswith the Company, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entitiesit and the Company, and each such entity it and the Company shall bear its their fair share shares of the salary and benefit costs associated with all such common officers and employees.;
(ivc) Ensure that, to To the extent that it jointly contracts with any of its members or other Affiliates the Company to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, between it and each such entity the Company and it and the Company shall bear its their fair share shares of such costs. To the extent that such Transferor it contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Personthe Company, the costs incurred in so doing shall be fairly allocated between it and the Company in proportion to or among such entities for whose the benefit of the goods and or services are each is provided, and each such entity it and the Company shall bear its their fair share shares of such costs.
(v) Ensure that all . All material transactions between such Transferor it and any of its Affiliates the Company, whether currently existing or hereafter entered into, shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.basis;
(vid) Maintain a principal executive and administrative office through which its business is conducted and a telephone number space separate from those the office space of its members and other Affiliatesthe Company (but which may be located at the same address as the Company). To the extent that such Transferor it and any of its members or other Affiliates the Company have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among between them, and each such entity shall bear its fair share of such expenses.;
(viie) Conduct its affairs strictly in accordance with its certificate Issue financial statements separate from any financial statements issued by the Company;
(f) Not assume or guarantee any of formation and limited liability company agreement the liabilities of the Company; and
(g) Take, or its certificate of incorporation and bylaws and observe refrain from taking, as the case may be, all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents other actions that are necessary to authorize actions be taken or not to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been taken in order (x) an officerto ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct with respect to it (and, agentto the extent within its control, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, to ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct with respect to the Company) and (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as those procedures described in such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state provisions that the assets of such Transferor are not available applicable to pay creditors of the Affiliateit.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Seller shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Seller will not be diverted to any other Person or for other than corporate uses of the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other PersonSeller.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Seller contracts or does business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Seller and any of its Affiliates shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor Seller and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders, and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viiivi) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereofTake or refrain from taking, “Independent Director” shall mean any member as applicable, each of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act activities specified as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided factual assumptions in the relevant Revolving Credit Agreement"non-substantive consolidation" opinion of Xxxxxx, ensure that no Affiliate of such Transferor shall advance funds or loan money to such TransferorXxxxx & Xxxxxxx LLP delivered on the Closing Date, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferorupon which the conclusions expressed therein are based.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Fidelity Leasing Inc)
Separate Corporate Existence. Each Transferor of the Seller and the Servicer hereby acknowledges that Purchaser and the Agent are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller's identity as a legal entity separate from the Servicer and any Originator. Therefore, from and after the date hereof, the Seller and the Servicer shall take all reasonable steps to continue the Seller's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of the Servicer, any Originator and any other Person, and is not a securitization special purpose entity shalldivision of the Servicer or any Originator or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and the Servicer shall take such actions as shall be required in order that:
(i) Maintain in full effect its existence, rights and franchises as The Seller will be a limited liability company under purpose corporation whose primary activities are restricted in its certificate of incorporation to purchasing Receivables from the laws Originators, entering into agreements for the servicing of the state of its formation or such Receivables, selling undivided interests in such Receivables and conducting such other activities as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement it deems necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.carry out its primary activities;
(ii) Except Not less than one member of Seller's Board of Directors (the "Independent Directors") shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of any Originator or any of its Affiliates. The Seller's Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors' fiduciary duty shall be to the Seller (and creditors) and not to the Seller's shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with any Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for any Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller's own bank accounts for services provided to the Seller except as provided herein in this Agreementrespect of the Servicer's Fee. The Seller will engage no agents other than a servicer for the Receivables, maintain which servicer will be fully compensated for its services to the Seller by payment of the Servicer's Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly Servicer's fee at a market rate based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and any Originator or any Affiliate thereof which are not reflected in the Servicer's Fee. To the extent, if any, that the Seller and any Originator or any Affiliate thereof share items of expenses not reflected in the Servicer's Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Imperial shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller's operating expenses will not be paid by any Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own deposit, securities separate mailing address and other account stationery;
(viii) The Seller's books and records will be maintained separately from those of each Originator or accounts, any Affiliate thereof;
(ix) Any financial statements of any Originator or any Affiliate thereof which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller's accounts receivable;
(x) The Seller's assets will be maintained in a manner that facilitates their identification and segregation from those of any Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with any Originator and any Affiliate thereof, and funds or other assets of such Transferor, with financial institutions. The funds of such Transferor the Seller will not be diverted to any other Person or for other than the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Person.
(iii) Ensure that, to the extent that it shares the same officers Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other employees depository accounts to which any Originator or any Affiliate thereof (other than IDI in its capacity as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share Servicer) has independent access. None of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all material transactions between such Transferor and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not Seller's funds will at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder be pooled with any funds of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of Originator or any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.thereof;
Appears in 1 contract
Samples: Receivables Purchase Agreement (Imperial Sugar Co /New/)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial institutions. The commercial banking institutions and ensure that the funds of such Transferor the Company will not be diverted to any other Person or for other than corporate uses of the company use of Company, nor will such Transferor, and, except as may funds be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, commingled with the funds of such Transferor shall not be commingled with those the Seller or any Subsidiary or Affiliate of any other Person.the Seller;
(iiiii) Ensure that, to To the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.;
(iviii) Ensure that, to To the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Company contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and or services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor the Company and any of its Affiliates Affiliates, whether currently existing or hereafter entered into, shall be only on an arm’s-arm's length basis basis, it being understood and shall not be on terms more favorable to either party than agreed that the terms that would be found transactions contemplated in a similar transaction involving unrelated third parties.the Transaction Documents meet the requirements of this clause (iii);
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number space separate from those the office space of the Seller and its members and other Affiliates. To the extent that such Transferor the Company and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.;
(viiv) Issue separate financial statements prepared not less frequently than quarterly and prepared in accordance with GAAP;
(vi) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate articles of incorporation and bylaws and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.;
(vii) Not assume or guarantee any of the liabilities of the Seller, the Servicer or any Affiliate thereof; and
(viii) Ensure Take, or refrain from taking, as the case may be, all other actions that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is are necessary to be taken or not and has not at any time been to be taken in order to (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct with respect to the Company and (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as those procedures described in such consolidated reports contain footnotes describing provisions which are applicable to the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the AffiliateCompany.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Pooling Agreement (American Axle & Manufacturing Inc)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Seller shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Seller will not be diverted to any other Person or for other than corporate uses of the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other PersonSeller.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Seller contracts or does business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Seller and any of its Affiliates shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor Seller and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders, and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viiivi) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereofTake or refrain from taking, “Independent Director” shall mean any member as applicable, each of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided activities specified in the relevant Revolving Credit Agreement"non-consolidation" opinion of Bingxxx Xxxx XXX delivered on the Closing Date, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferorupon which the conclusions expressed therein are based.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Loan Purchase and Servicing Agreement (First International Bancorp Inc)
Separate Corporate Existence. Each The Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial institutions. The commercial banking institutions and use its commercially reasonable efforts to ensure that the funds of such the Transferor will not be diverted to any other Person or for other than corporate uses of the company use of such Transferor, andTransferor and that, except as may be expressly permitted contemplated by this Agreement or the applicable Receivables Purchase AgreementSection 5.02(e), the such funds of such Transferor shall will not be commingled with those the funds of any other Person.Seller or any Subsidiary or Affiliate of the Sellers;
(iiiii) Ensure that, to To the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, fairly allocate among such entities the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entitiesemployees, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.;
(iviii) Ensure that, to To the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, fairly allocate among such entities the costs incurred in so doing shall be allocated fairly among such entitiesdoing, and each such entity shall bear its fair share of such costs. To the extent that such the Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and or services are provided, and each such entity shall bear its fair share of such costs.;
(viv) Ensure that Enter into all material transactions between such the Transferor and any of its Affiliates shall be Affiliates, whether currently existing or hereafter entered into, only on an arm’s-arm's length basis basis, it being understood and shall not be on terms more favorable to either party than agreed that the terms that would be found transactions contemplated in a similar transaction involving unrelated third parties.the Transaction Documents meet the requirements of this clause (iv);
(viv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number space separate from those the office space of its members the Sellers and other Affiliatesany Affiliates of the Sellers. To the extent that such the Transferor and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.;
(vi) Issue separate unaudited financial statements prepared not less frequently than quarterly and prepared in accordance with GAAP consistently applied;
(vii) Conduct its affairs strictly in accordance with its certificate Articles of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.;
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member Not assume or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of guarantee any of the foregoing).liabilities of, or make any loans to, the Sellers or any Affiliate thereof; provided, that for a period of not more than three (3) SA-37 months after the Closing Date, the Transferor may have outstanding short-term loans to C & A;
(ix) Ensure Take, or refrain from taking, as the case may be, all other actions that decisions are necessary to be taken or not to be taken in order to (x) ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct with respect to its business the Transferor and daily operations shall be independently made by (y) comply with those procedures described in such Transferor (although provisions which are applicable to the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.;
(x) Act solely in its own company name and through its own authorized officers and agentsTake such actions as are necessary to ensure that not less than one member of Transferor's Board of Directors shall be an individual who is not, and no Affiliate never has been, a direct, indirect or beneficial stockholder, officer, director, employee, affiliate, associate, material supplier or material customer of the Collection Agent or any of its Affiliates (an "Independent Director"). The Articles of Incorporation of the Transferor shall provide that (i) at least one member of the Transferor's Board of Directors shall be an Independent Director, (ii) the Transferor's Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Transferor unless a unanimous vote of the Transferor's Board of Directors (which vote shall include the affirmative vote of each Independent Director) shall approve the taking of such Transferor shall be appointed action in writing prior to act as agent the taking of such Transferor. Such Transferor shall at all times use its own stationery action and business forms (iii) the provisions requiring an independent director and describe itself as a separate legal entity.the provision described in clauses (i) and (ii) of this clause (x) cannot be amended without the prior written consent of each Independent Director;
(xi) Other than Take such actions as provided are necessary to ensure that no Independent Director shall at any time serve as a trustee in bankruptcy for the Transferor or any Affiliate thereof;
(xii) Take such actions as are necessary to ensure that the books of account, financial reports and corporate records of the Transferor will be maintained separately from those of C&A and each other Affiliate of the Transferor;
(xiii) Take such actions as are necessary to ensure that any financial statements of C&A or any Affiliate thereof which are consolidated to include the Transferor will contain detailed notes clearly stating that (A) all of the Transferor's assets are owned by the Transferor, and (B) the Transferor is a separate corporate entity with its own separate creditors that will be entitled to be satisfied out of the Transferor's assets prior to any value in the relevant Revolving Credit AgreementTransferor becoming available to the Transferor's equity holders; and the accounting records and the published financial statements of the Sellers will clearly show that, for accounting purposes, the Receivables and Related Security have been sold to the Transferor;
(xiv) Take such actions as are necessary to ensure that the Transferor's assets will be maintained in a manner that facilitates their identification and segregation from those of C&A, the Sellers and other Affiliates of C & A;
(xv) Take such actions as are necessary to ensure that no Affiliates of the Transferor shall, directly or indirectly, name the Transferor or enter into any agreement to name the Transferor a direct or contingent beneficiary or loss payee or any insurance policy covering the property of any such Affiliate; and
(xvi) Take such actions as are necessary to ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such the Transferor will otherwise guaranty be, nor will hold itself out to be, responsible for the debts of such the Transferor or the decisions or actions in respect of the daily business and affairs of the Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into . The Transferor will immediately correct any guaranty, or otherwise become liable, known misrepresentation with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such foregoing, and the Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long will not operate or purport to operate as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available an integrated single economic unit with respect to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement each other or in its certificate of incorporation and bylawstheir dealing with any other entity.
Appears in 1 contract
Samples: Receivables Transfer Agreement (Collins & Aikman Corp)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Trust Depositor shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The Except for payments to its equity holders in the form of a dividend and for payments for the Trust Assets purchased from the Sellers under the Sale and Contribution Agreement, the funds of such Transferor the Trust Depositor will not be diverted to any other Person or for used other than for corporate uses of the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other PersonTrust Depositor.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it and any Seller (together with their respective stockholders or Affiliates) jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts it and any Seller (together with their respective stockholders or does Affiliates) do business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Trust Depositor and any of its Affiliates shall be only on an arm’s-arms' length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor Trust Depositor and any of its members stockholders or other Affiliates have offices in contiguous spaceat the same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viiivi) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member Otherwise operate as an entity with assets and liabilities distinct from those of the board of directors of such Transferor that is not Sellers and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing)Affiliates thereof.
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Separate Corporate Existence. Each Transferor of the Seller and the Servicer hereby acknowledges that the Purchasers, the Insurer, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller's identity as a legal entity separate from the Servicer and the Originator. Therefore, from and after the date hereof, the Seller and the Servicer shall take all reasonable steps to continue the Seller's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of the Servicer, the Originator and any other Person, and is not a securitization special purpose entity shalldivision of the Servicer or the Originator or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in PARAGRAPH (a) of this EXHIBIT IV, the Seller and the Servicer shall take such actions as shall be required in order that:
(i) Maintain in full effect its existence, rights and franchises as The Seller will be a limited liability company under purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the laws Originator, entering into agreements for the servicing of the state of its formation or such Receivables, selling undivided interests in such Receivables and conducting such other activities as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement it deems necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.carry out its primary activities;
(ii) Except Not less than one member of Seller's Board of Directors (the "INDEPENDENT DIRECTORS") shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller's Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors' fiduciary duty shall be to the Seller (and creditors) and not to the Seller's shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this CLAUSE (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller's own bank accounts for services provided to the Seller except as provided herein in this Agreementrespect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, maintain which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller's operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own deposit, securities separate mailing address and other account or accounts, separate stationery;
(viii) The Seller's books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of such Transferorthe Originator or ADESA which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller's accounts receivable;
(x) The Seller's assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, with financial institutions. The and funds or other assets of such Transferor the Seller will not be diverted to any other Person or for other than the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of the Originator or any other Person.
(iii) Ensure that, to the extent that it shares the same officers Affiliate thereof. The Seller shall not maintain joint bank accounts or other employees depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(ivServicer) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all material transactions between such Transferor and any of its Affiliates shall be only on an arm’s-length basis has independent access and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and pool any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not Seller's funds at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member with any funds of the Originator or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.thereof;
(xii) Other The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.the Seller); and
(xiii) Not enter into The Seller will maintain arm's length relationships with the Originator and any guaranty, Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise become liable, with respect furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold its assets or creditworthiness itself out as being available to be responsible for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect debts of the transactions between such Transferor other or the decisions or actions respecting the daily business and such Affiliate and also state that the assets of such Transferor are not available to pay creditors affairs of the Affiliateother.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Seller shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Seller will not be diverted to any other Person or for other than corporate uses of the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other PersonSeller.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Seller contracts or does business with vendors or service providers where when the goods and 52 58 services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Seller and any of its Affiliates shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor Seller and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders, and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viiivi) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereofTake or refrain from taking, “Independent Director” shall mean any member as applicable, each of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided activities specified in the relevant Revolving Credit Agreement"non-consolidation" opinion of Bingxxx Xxxx LLP delivered on the Closing Date, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferorupon which the conclusions expressed therein are based.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Loan Purchase and Servicing Agreement (First International Bancorp Inc)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Club Trustee shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Club Trustee will not be diverted to any other Person or for other than trust or corporate uses of the company use of such TransferorClub Trustee, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Personapplicable.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members shareholders, beneficiaries or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each 75 such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it the Club Trustee and the Servicer (together with their respective shareholders or Affiliates) jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts the Club Trustee and the Servicer (together with their respective stockholders or does Affiliates) do business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Club Trustee and any of its Affiliates shall be only on an arm’s-arms’ length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor the Club Trustee and any of its members stockholders, beneficiaries or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement the Club Trust Agreement or its certificate amended and restated articles of incorporation and bylaws incorporation, as applicable, and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special membersstockholders’, trustees’ and directors’ meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided set forth in this Agreementthe Transaction Documents, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial institutions. The commercial banking institutions and ensure that the funds of such Transferor the Company will not be diverted to any other Person or for other than corporate uses of the company use of Company, nor will such Transferor, and, except as may funds be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, commingled with the funds of such Transferor a Seller or any Subsidiary or Affiliate of a Seller provided that the foregoing restriction shall not be commingled with those preclude the Company from lending its excess cash balances to a Seller or any Subsidiary or Affiliate of the Seller for investment (which may include inter-Affiliate loans made by the Seller or any other Person.Subsidiary or Affiliate of the Seller) on a pooled basis as part of the cash management system maintained by a Seller for its consolidated group so long as all such transactions are properly reflected on the books and records of the Company and the Sellers (and any Subsidiary or Affiliate of the Sellers, if applicable);
(iiiii) Ensure that, to To the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.;
(iviii) Ensure that, to To the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor the Company contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and or services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor the Company and any of its Affiliates Affiliates, whether currently existing or hereafter entered into, shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.basis;
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number space separate from those the office space of its members the Sellers and other their Affiliates (but which may be located at the same address as a Seller or one of a Seller's Affiliates). To the extent that such Transferor the Company and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.;
(viiv) Issue separate financial statements prepared not less frequently than annually and prepared in accordance with GAAP;
(vi) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws organizational documents and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ , meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.;
(vii) Not assume or guarantee any of the liabilities of the Sellers, the Servicer or any Affiliate thereof; and
(viii) Ensure Take, or refrain from taking, as the case may be, all other actions that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is are necessary to be taken or not and has not at any time been to be taken in order to (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct with respect to the Company and (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as those procedures described in such consolidated reports contain footnotes describing provisions which are applicable to the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the AffiliateCompany.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Pooling Agreement (Bunge LTD)
Separate Corporate Existence. Each Transferor Guarantor, Seller and SCI hereby acknowledge that the Purchaser and the Administrative Agent are entering into the transactions contemplated by this Agreement in reliance upon the Seller's identity as a legal entity separate from the other Affiliated Parties. Therefore, Guarantor, Seller and SCI shall take the steps described in this Section 7.04 and any other steps that the Administrative Agent reasonably requests to continue Seller's identity as such a separate legal entity and to make it apparent to third Persons that Seller is an entity with assets and liabilities distinct from those of the other Affiliated Parties and those of any other Person, and not a securitization special division of the other Affiliated Parties or any other Person:
(a) Seller will be a limited purpose entity shall:corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from SCI and SCI Colorado pursuant to the Second Tier Sale Agreements, entering into agreements for the servicing of such Receivables, selling undivided interests in the Receivables to the Administrative Agent for the benefit of Purchaser, and to the Parallel Purchasers (or the Bank Agent for their benefit), and conducting such other activities as it reasonably deems necessary or appropriate to carry out its primary activities;
(b) At least two members of Seller's Board of Directors shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of any other Affiliated Party;
(c) No director or officer of Seller shall at any time serve as a trustee in bankruptcy for any other Affiliated Party;
(d) Any employee, consultant or agent of Seller will be paid by the Manager for services provided to Seller, which payment shall be charged to Seller's account, except as provided in this Agreement in respect of the Servicing Fee. Seller will engage no agents other than a Servicer for the Receivables, which Servicer (if an Affiliated Party) will be fully compensated for its services to Seller by payment of the Servicing Fee, and the Manager pursuant to the Management Agreement, which Manager's fees shall not exceed $10,000 in any calendar year;
(e) Seller will not incur any liabilities other than its liabilities hereunder and under the other Agreement Documents, liabilities to the independent directors not exceeding $10,000 at any time outstanding (although annual compensation may exceed $10,000 per year), plus $1,000 for each meeting in excess of three per year, plus out-of-pocket expenses approved by the Manager and other liabilities incurred in the ordinary course of business that do not exceed $3,000 due and owing at any one time;
(f) Seller's operating expenses will not be paid by any other Affiliated Party;
(g) Seller will have its own separate mailing address, stationery and, if used, bank checks and, if it uses premises leased, owned or occupied by any other Affiliated Party, its portion of such premises will be defined and separately identified;
(h) Seller's books and records will be maintained separately from those of every other Affiliated Party;
(i) Maintain Any financial statements of any other Affiliated Party which are consolidated to include Seller will contain detailed notes clearly stating that (A) all of Seller's assets are owned by the Seller, and (B) Seller is a separate corporate entity with its own separate creditors which will be entitled to be satisfied out of Seller's assets prior to any value in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification Seller becoming available to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.Seller's equity holders;
(iij) Except as provided The assets of Seller will be maintained in this Agreement, maintain its own deposit, securities a manner that facilitates their identification and other account or accounts, separate segregation from those of any Affiliate other Affiliated Party;
(k) Seller will strictly observe corporate formalities in its dealings with each other Affiliated Party, and funds or other assets of such Transferor, with financial institutions. The funds of such Transferor Seller will not be diverted to any other Person commingled or for other than the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled pooled with those of any other Person.Affiliated Party;
(iiil) Ensure that, to the extent that it shares the same officers Seller shall not maintain joint bank accounts with any other Affiliated Party or other employees depository accounts to which any other Affiliated Party (other than SCI or any Originator in its capacity as any of its members Servicer or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.Subservicer) has independent access;
(ivm) Ensure thatSeller shall not, directly or indirectly, be named and shall not enter into any agreement to be named as a direct or contingent beneficiary or loss payee on any insurance policy covering the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit property of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.Affiliated Party;
(vn) Ensure that all material transactions between Seller will maintain arm's length relationships with each other Affiliated Party. Any other Affiliated Party which renders or otherwise furnishes services or merchandise to Seller will be compensated by Seller at market rates for such Transferor and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.services or merchandise; and
(vio) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and Neither Seller, on the one hand, nor any other Affiliates. To Affiliated Party, on the extent that such Transferor and any of its members other hand, will be or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or will hold itself out to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (responsible for purposes hereof, “Independent Director” shall mean any member the debts of the board of directors of such Transferor that is not other or the decisions or actions respecting the daily business and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member affairs of the immediate family of any of the foregoing)other.
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Separate Corporate Existence. Each Transferor SPV hereby acknowledges that TFC is entering into the transactions contemplated by this Loan Agreement in reliance upon SPV's identity as a securitization special purpose legal entity shallseparate from its Affiliates. Therefore, from and after the date hereof, SPV shall take all reasonable steps to continue SPV's identity as a separate legal entity and to make it apparent to third Persons that SPV is an entity with assets and liabilities distinct from those of any of its Affiliates and any other Person, and is not a division of any such Affiliate or any other Person. Without limiting the generality of the foregoing, SPV shall take such actions, as shall be required in order that:
(i) Maintain in full effect SPV will be a Delaware corporation whose activities are restricted by its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification organizational documents to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of entering into this Loan Agreement and the applicable Receivables Purchase Agreement other Loan Documents, and each conducting such other instrument or agreement activities as it deems necessary or appropriate to proper administration hereof and carry out the activities referred to permit and effectuate the transactions contemplated herebyin this Section.
(ii) Except Any employee, consultant or agent of SPV will be compensated from funds of SPV for services provided to SPV. SPV will engage no agents other than (i) a Master Servicer, which Master Servicer will be fully compensated for its services to Trust by payment of the Servicer Fee, and (ii) an administrator or manager pursuant to an administrative services agreement, whose ongoing fees, if any, will be paid from funds of SPV.
(iii) To the extent, if any, that SPV and Developer (or any other Affiliate thereof) share items of expenses such as provided in this Agreementlegal, maintain auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Developer shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Loan Documents, including, without limitation, legal and other up-front fees.
(iv) SPV's operating expenses will not be the responsibility of Developer or any other Affiliate thereof.
(v) SPV will have its own deposit, securities separate stationery.
(vi) SPV's books and other account or accounts, separate records will be maintained separately from those of Developer and any other Affiliate thereof.
(vii) All audited financial statements of Developer or any Affiliate thereof that are consolidated to include SPV will contain, to the extent required by GAAP, detailed notes clearly stating that (A) all of such TransferorSPV's assets are owned by SPV, and (B) SPV is a separate legal entity with financial institutions. The creditors who have received ownership and/or security interests in SPV's assets.
(viii) SPV's assets will be maintained in a manner that facilitates their identification and segregation from those of Developer or any Affiliate thereof.
(ix) SPV will strictly observe independent business formalities in its dealings with Developer or any Affiliate thereof, including, without limitation, separate books and records, separate officers and separate meetings of the Board of Directors, and funds or other assets of such Transferor SPV will not be diverted to any other Person or for other than the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of Developer or any other Person.
(iii) Ensure that, to the extent that it shares the same officers Affiliate thereof. SPV shall not maintain joint bank accounts or other employees as depository accounts to which Developer or any Affiliate thereof has independent access. None of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all material transactions between such Transferor and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not SPV's funds will at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member be pooled with any funds of Developer or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferorthereof.
(x) Act solely SPV will maintain arm's-length relationships with Developer and any Affiliate thereof. Any Person that renders or otherwise furnishes services to SPV will be compensated by SPV at market rates for such services it renders or otherwise furnishes to SPV except as otherwise provided in its own company name these Loan Documents. Except as contemplated in the Loan Documents, SPV will not be and through its own authorized officers will not hold itself out to be responsible for the debts of Developer or any Affiliate thereof or the decisions or actions respecting the daily business and agents, affairs of Developer or any Affiliate thereof; and no none of Developer or any Affiliate thereof will hold itself out to be responsible for the debts of such Transferor shall be appointed to act as agent SPV or the decisions or actions respecting the daily business and affairs of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entitySPV.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor SPV shall advance funds or loan money to such Transferorxxxx, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided hereincause the Developer to xxxx, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect master computer records to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state clearly show that the assets Pledged Receivables have been conveyed by Developer to SPV, and have been subjected to liens in favor of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation TFC and its limited liability company agreement or in its certificate of incorporation and bylawsassigns.
Appears in 1 contract
Samples: Loan and Security Agreement (Silverleaf Resorts Inc)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Borrower shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided set forth in this Agreementthe Transaction Documents, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such Transferor, with financial institutions. The and ensure that its funds of such Transferor will not be diverted to any other Person or for other than the company use of Affiliate, nor will such Transferor, and, except as may funds be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, commingled with the funds of such Transferor shall not be commingled with those of any other Person.Affiliate
(iiiii) Ensure that, to To the extent that it shares the same any officers or other employees as with any of its members or other AffiliatesAffiliate, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among it and such entitiesAffiliate, and each it and such entity Affiliate shall bear its their fair share shares of the salary and benefit costs associated with all such common officers and employees.;
(iviii) Ensure that, to To the extent that it jointly contracts with any of its members or other Affiliates Affiliate to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among between it and such entities, Affiliate and each it and such entity Affiliate shall bear its their fair share shares of such costs. To the extent that such Transferor it contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Personan Affiliate, the costs incurred in so doing shall be fairly allocated between it and such Affiliate in proportion to or among such entities for whose the benefit of the goods and or services are each is provided, and each it and such entity Affiliate shall bear its their fair share shares of such costs.
(v) Ensure that all . All material transactions between such Transferor it and any of its Affiliates an Affiliate, whether currently existing or hereafter entered into, shall be only on an arm’s-arm’s length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.basis;
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number space separate from those the office space of its members and other Affiliatesany Affiliate (but which may be located at the same address as an Affiliate). To the extent that such Transferor it and any of its members or other Affiliates Affiliate have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among between them, and each such entity shall bear its fair share of such expenses.;
(viiv) Issue financial statements separate from any financial statements issued by any Affiliate;
(vi) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws organizational documents and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all company action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.;
(vii) Except as set forth in the Transaction Documents, not assume or guarantee any of the liabilities of any Affiliate; and
(viii) Ensure Take, or refrain from taking, as the case may be, all other actions that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is are necessary to be taken or not and has not at any time been to be taken in order (x) an officerto ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct with respect to it (and, agentto the extent within its control, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, to ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct with respect to the Company) and (y) a director of any Affiliate of to comply with those procedures described in such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).provisions that are applicable to it; and
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made no action is taken by such Transferor (although the officer making Borrower or any particular decision Affiliate which would or may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
result in (x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate any member of such Transferor shall the Stamp Duty Group ceasing to be appointed to act as agent associated with any other member or members of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available Stamp Duty Group for the payment purposes of any obligation Section 42 Finance Act 1930 or (y) the provisions of any Affiliate of such Transferor nor shall such Transferor make any loans Section 27 Finance Xxx 0000 applying to any Person.
(xiv) Ensure that any financial reports required transfer of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect UK Receivables made between members of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the AffiliateStamp Duty Group.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity shallof the Borrowers will:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation one or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other account or more deposit accounts, each separate from those the deposit accounts of any Affiliate of such TransferorAffiliate, with financial institutions. The commercial banking institutions and ensure that its funds of such Transferor will not be diverted to any other Person or for other than the company use of its corporate uses, nor will such Transferor, and, except as may funds be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, commingled with the funds of such Transferor shall not be commingled with those any of its stockholders or any Subsidiary or Affiliate of any other Person.of its stockholders;
(iiiii) Ensure that, to To the extent that it shares the same officers or other employees as any of its members shareholders or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.;
(iviii) Ensure that, to To the extent that it jointly contracts with any of its members shareholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor it contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and or services are provided, and each such entity shall bear its fair share of such costs.;
(iv) Enter into all material transactions between it and any of its Affiliates, whether currently existing or hereafter entered into, only on an arm’s length basis;
(v) Ensure that all material transactions between such Transferor and Maintain office space separate from the office space of any of its stockholders or Affiliates shall be only on an arm’sother than its wholly-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliatesowned Subsidiaries. To the extent that such Transferor it and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.;
(viivi) Conduct its affairs strictly in accordance with its certificate Certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation, and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special membersshareholders’ and directors’ meetings appropriate to authorize all actioncorporate actions, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.; and
(viiivii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member Not assume or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of guarantee any of the foregoing).
(ix) Ensure that decisions with respect to liabilities of its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer Affiliates or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such stockholders or any Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliatethereof other than its wholly-owned subsidiaries.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Separate Corporate Existence. Each Transferor of the Seller and the Servicer hereby acknowledges that the Purchasers, the Purchaser Agents and the Administrator are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from the Servicer and the Originator. Therefore, from and after the date hereof, the Seller and the Servicer shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of the Servicer, the Originator and any other Person, and is not a securitization special purpose entity shalldivision of the Servicer or the Originator or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and the Servicer shall take such actions as shall be required in order that:
(i) Maintain in full effect its existence, rights and franchises as The Seller will be a limited liability company under purpose corporation whose primary activities are restricted in its certificate of incorporation to purchasing Receivables from the laws Originator, entering into agreements for the servicing of the state of its formation or such Receivables, selling undivided interests in such Receivables and conducting such other activities as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement it deems necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.carry out its primary activities;
(ii) Except Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for the Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in this Agreementrespect of the Servicer’s Fee. The Seller will engage no agents other than a servicer for the Receivables, maintain which servicer will be fully compensated for its services to the Seller by payment of the Servicer’s Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicer’s Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicer’s Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Pilgrim’s Pride shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses will not be paid by the Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own deposit, securities separate mailing address and other account or accounts, separate stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of such Transferorthe Originator or any Affiliate thereof which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, with financial institutions. The and funds or other assets of such Transferor the Seller will not be diverted to any other Person or for other than the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of the Originator or any other Person.
(iii) Ensure that, to the extent that it shares the same officers Affiliate thereof. The Seller shall not maintain joint bank accounts or other employees depository accounts to which the Originator or any Affiliate thereof (other than Pilgrim’s Pride in its capacity as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share Servicer) has independent access. None of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all material transactions between such Transferor and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not Seller’s funds will at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member be pooled with any funds of the Originator or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.thereof;
(xii) Other than organizational expenses The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as expressly provided hereina direct or contingent beneficiary or loss payee, pay all expensesunder any such insurance policy, indebtedness and other obligations incurred by it using its own funds.with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof; and
(xiii) Not enter into The Seller will maintain arm’s length relationships with the Originator and any guaranty, Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise become liable, with respect furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold its assets or creditworthiness itself out as being available to be responsible for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect debts of the transactions between such Transferor other or the decisions or actions respecting the daily business and such Affiliate and also state that the assets of such Transferor are not available to pay creditors affairs of the Affiliateother.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Pilgrims Pride Corp)
Separate Corporate Existence. Each Transferor that is a securitization special purpose entity The Club Trustee shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial commercial banking institutions. The funds of such Transferor the Club Trustee will not be diverted to any other Person or for other than trust or corporate uses of the company use of such TransferorClub Trustee, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Personapplicable.
(iiiii) Ensure that, to the extent that it shares the same officers or other employees as any of its members stockholders, beneficiaries or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iviii) Ensure that, to the extent that it the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts the Club Trustee and the Servicer (together with their respective stockholders or does Affiliates) do business with vendors or service providers where when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all . All material transactions between such Transferor Seller and any of its Affiliates shall be only on an arm’s-arm's length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third partiesbasis.
(viiv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor the Club Trustee and any of its members stockholders, beneficiaries or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(viiv) Conduct its affairs strictly in accordance with its certificate the Trust Agreement or Articles of formation and limited liability company agreement or its certificate of incorporation and bylaws Incorporation, as applicable, and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders', trustees' and directors’ ' meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into any guaranty, or otherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Separate Corporate Existence. Each The Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial institutions. The commercial banking institutions and use its commercially RECEIVABLES TRANSFER AGREEMENT reasonable efforts to ensure that the funds of such the Transferor will not be diverted to any other Person or for other than corporate uses of the company use of such Transferor, andTransferor and that, except as may be expressly permitted contemplated by this Agreement or the applicable Receivables Purchase Agreement, the Section 6.02(b) such funds of such Transferor shall will not be commingled with those the funds of any other Person.Seller or any Subsidiary or Affiliate of the Sellers;
(iiiii) Ensure that, to To the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, fairly allocate among such entities the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entitiesemployees, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.;
(iviii) Ensure that, to To the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, fairly allocate among such entities the costs incurred in so doing shall be allocated fairly among such entitiesdoing, and each such entity shall bear its fair share of such costs. To the extent that such the Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and or services are provided, and each such entity shall bear its fair share of such costs.;
(viv) Ensure that Enter into all material transactions between such the Transferor and any of its Affiliates shall be Affiliates, whether currently existing or hereafter entered into, only on an arm’s-arm's length basis basis, it being understood and shall not be on terms more favorable to either party than agreed that the terms that would be found transactions contemplated in a similar transaction involving unrelated third parties.the Transaction Documents meet the requirements of this clause (iv);
(viv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number space separate from those the office space of its members the Sellers and other Affiliatesany Affiliates of the Sellers. To the extent that such the Transferor and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.;
(vi) Issue separate unaudited financial statements prepared not less frequently than quarterly and prepared in accordance with GAAP consistently applied;
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate articles of incorporation and bylaws and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.; RECEIVABLES TRANSFER AGREEMENT
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member Not assume or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of guarantee any of the foregoing).liabilities of the Sellers or any Affiliate thereof;
(ix) Ensure Take, or refrain from taking, as the case may be, all other actions that decisions are necessary to be taken or not to be taken in order to (x) ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct with respect to its business the Transferor and daily operations shall be independently made by (y) comply with those procedures described in such Transferor (although provisions which are applicable to the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.;
(x) Act solely in its own company name and through its own authorized officers and agentsTake such actions as are necessary to ensure that not less than one member of Transferor's Board of Directors shall be an individual who (1) is not, and no Affiliate never has been, a direct, indirect or beneficial stockholder, officer, director, employee, affiliate, associate, material supplier or material customer of the Collection Agent or any of its Affiliates, and (2) has experience as an independent director for a corporation whose charter documents required the unanimous consent of all independent directors thereof before such corporation could consent to the institution of bankruptcy or insolvency proceeding against it or before it could file a petition seeking relief under any applicable federal or state law relating to bankruptcy or insolvency, and (3) has at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities (the "Independent Directors"). The certificate of incorporation of the Transferor shall provide that (i) at least one member of the Transferor's Board of Directors shall be an Independent Director, (ii) the Transferor's Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Transferor unless a unanimous vote of the Transferor's Board of Directors (which vote shall include the affirmative vote of each Independent Director) shall approve the taking of such Transferor shall be appointed action in writing prior to act as agent the taking of such Transferor. Such Transferor shall at all times use its own stationery action and business forms (iii) the provisions requiring an independent director and describe itself as a separate legal entity.the provision described in clauses (i) and (ii) of this paragraph (b) cannot be amended without the prior written consent of each Independent Director;
(xi) Other than Take such actions as provided are necessary to ensure that no Independent Director shall at any time serve as a trustee in bankruptcy for the Transferor or any Affiliate thereof;
(xii) Take such actions as are necessary to ensure that the books of account, financial reports and corporate records of the Transferor will be maintained separately from those of TriMas Corp., TriMas LLC and each other Affiliate of the Transferor; RECEIVABLES TRANSFER AGREEMENT
(xiii) Take such actions as are necessary to ensure that any financial statements of TriMas Corp. or Affiliate thereof which are consolidated to include the Transferor will contain detailed notes clearly stating that (A) all of the Transferor's assets are owned by the Transferor, and (B) the Transferor is a separate corporate entity with its own separate creditors that will be entitled to be satisfied out of the Transferor's assets prior to any value in the relevant Revolving Credit AgreementTransferor becoming available to the Transferor's equity holders; and the accounting records and the published financial statements of the Sellers will clearly show that, for accounting purposes, the Receivables and Related Security have been sold to the Transferor;
(xiv) Take such actions as are necessary to ensure that the Transferor's assets will be maintained in a manner that facilitates their identification and segregation from those of TriMas Corp., the Sellers and other Affiliates of TriMas Corp.;
(xv) Take such actions as are necessary to ensure that no Affiliates of the Transferor shall, directly or indirectly, name the Transferor or enter into any agreement to name the Transferor a direct or contingent beneficiary or loss payee or any insurance policy covering the property of any such Affiliate; and
(xvi) Take such actions as are necessary to ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such the Transferor will otherwise guaranty be, nor will hold itself out to be, responsible for the debts of such the Transferor or the decisions or actions in respect of the daily business and affairs of the Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into . The Transferor will immediately correct any guaranty, or otherwise become liable, known misrepresentation with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such foregoing, and the Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long will not operate or purport to operate as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available an integrated single economic unit with respect to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement each other or in its certificate of incorporation and bylawstheir dealing with any other entity.
Appears in 1 contract
Separate Corporate Existence. Each The Transferor that is a securitization special purpose entity shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation or as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Except as provided in this Agreement, maintain its own deposit, securities and other deposit account or accounts, separate from those of any Affiliate of such TransferorAffiliate, with financial institutions. The commercial banking institutions and use its commercially reasonable efforts to ensure that the funds of such the Transferor will not be diverted to any other Person or for other than corporate uses of the company use of such Transferor, andTransferor and that, except as may be expressly permitted contemplated by this Agreement or the applicable Receivables Purchase AgreementSection 6.02(b), the such funds of such Transferor shall will not be commingled with those the funds of any other Person.Seller or any Subsidiary or Affiliate of the Sellers;
(iiiii) Ensure that, to To the extent that it shares the same officers or other employees as any of its members stockholders or other Affiliates, fairly allocate among such entities the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entitiesemployees, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.;
(iviii) Ensure that, to To the extent that it jointly contracts with any of its members stockholders or other Affiliates to do business with vendors or service providers or to share overhead expenses, fairly allocate among such entities the costs incurred in so doing shall be allocated fairly among such entitiesdoing, and each such entity shall bear its fair share of such costs. To the extent that such the Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and or services are provided, and each such entity shall bear its fair share of such costs.;
(viv) Ensure that Enter into all material transactions between such the Transferor and any of its Affiliates shall be Affiliates, whether currently existing or hereafter entered into, only on an arm’s-arm's length basis basis, it being understood and shall not be on terms more favorable to either party than agreed that the terms that would be found transactions contemplated in a similar transaction involving unrelated third parties.the Transaction Documents meet the requirements of this clause (iv);
(viv) Maintain a principal executive and administrative office through which its business is conducted and a telephone number space separate from those the office space of its members the Sellers and other Affiliatesany Affiliates of the Sellers. To the extent that such the Transferor and any of its members stockholders or other Affiliates have offices in contiguous spacethe same location, there shall be a fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.;
(vi) Issue separate financial statements prepared not less frequently than quarterly and prepared in accordance with GAAP;
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company corporate formalities, including, but not limited to, holding all regular and special members’ stockholders' and directors’ ' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of such its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.;
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member Not assume or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of guarantee any of the foregoing).liabilities of the Sellers or any Affiliate thereof;
(ix) Ensure Take, or refrain from taking, as the case may be, all other actions that decisions are necessary to be taken or not to be taken in order to (x) ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct with respect to its business the Transferor and daily operations shall be independently made by (y) comply with those procedures described in such Transferor (although provisions which are applicable to the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.;
(x) Act solely in its own company name and through its own authorized officers and agentsTake such actions as are necessary to ensure that not less than one member of Transferor's Board of Directors shall be an individual who is not, and no Affiliate never has been, a direct, indirect or beneficial stockholder, officer, director, employee, affiliate, associate, material supplier or material customer of the Collection Agent or any of its Affiliates (the "Independent Directors"). The certificate of incorporation of the Transferor shall provide that (i) at least one member of the Transferor's Board of Directors shall be an Independent Director, (ii) the Transferor's Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Transferor unless a unanimous vote of the Transferor's Board of Directors (which vote shall include the affirmative vote of each Independent Director) shall approve the taking of such Transferor shall be appointed action in writing prior to act as agent the taking of such Transferor. Such Transferor shall at all times use its own stationery action and business forms (iii) the provisions requiring an independent director and describe itself as a separate legal entity.the provision described in clauses (i) and (ii) of this paragraph (b) cannot be amended without the prior written consent of each Independent Director;
(xi) Other than Take such actions as provided are necessary to ensure that no Independent Director shall at any time serve as a trustee in bankruptcy for the Transferor or any Affiliate thereof;
(xii) Take such actions as are necessary to ensure that the books of account, financial reports and corporate records of the Transferor will be maintained separately from those of the Parent and each other Affiliate of the Transferor;
(xiii) Take such actions as are necessary to ensure that any financial statements of Parent or Affiliate thereof which are consolidated to include the Transferor will contain detailed notes clearly stating that (A) all of the Transferor's assets are owned by the Transferor, and (B) the Transferor is a separate corporate entity with its own separate creditors that will be entitled to be satisfied out of the Transferor's assets prior to any value in the relevant Revolving Credit AgreementTransferor becoming available to the Transferor's equity holders; and the accounting records and the published financial statements of the Sellers will clearly show that, for accounting purposes, the Receivables and Related Security have been sold to the Transferor;
(xiv) Take such actions as are necessary to ensure that the Transferor's assets will be maintained in a manner that facilitates their identification and segregation from those of the Parent, the Sellers and other Affiliates of the Parent;
(xv) Take such actions as are necessary to ensure that no Affiliates of the Transferor shall, directly or indirectly, name the Transferor or enter into any agreement to name the Transferor a direct or contingent beneficiary or loss payee or any insurance policy covering the property of any such Affiliate; and
(xvi) Take such actions as are necessary to ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such the Transferor will otherwise guaranty be, nor will hold itself out to be, responsible for the debts of such the Transferor or the decisions or actions in respect of the daily business and affairs of the Transferor.
(xii) Other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds.
(xiii) Not enter into . The Transferor will immediately correct any guaranty, or otherwise become liable, known misrepresentation with respect to or hold its assets or creditworthiness out as being available for the payment of any obligation of any Affiliate of such foregoing, and the Transferor nor shall such Transferor make any loans to any Person.
(xiv) Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long will not operate or purport to operate as such consolidated reports contain footnotes describing the effect of the transactions between such Transferor and such Affiliate and also state that the assets of such Transferor are not available an integrated single economic unit with respect to pay creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement each other or in its certificate of incorporation and bylawstheir dealing with any other entity.
Appears in 1 contract
Separate Corporate Existence. Each Transferor Amphenol and Seller hereby acknowledge that Purchaser and the Agent are entering into the transactions contemplated by this Agreement in reliance upon Seller's identity as a legal entity separate from Servicer, Amphenol, and the Originators. Therefore, from and after the date hereof, Seller and Amphenol shall take all reasonable steps to continue Seller's identity as a separate legal entity and to make it apparent to third Persons that Seller is an entity with assets and liabilities distinct from those of Servicer, Amphenol, the Originators and any other Person, and is not a securitization special purpose entity shalldivision of Servicer, Amphenol, any Originator or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in Section 7.01(b), Seller and Amphenol shall take such actions, and Amphenol shall cause the Originators to take such actions, as shall be required in order that:
(i) Maintain in full effect its existence, rights and franchises as Seller will be a limited liability company under purpose corporation whose primary activities are restricted in its certificate of incorporation to purchasing Receivables from the laws Originators, entering into agreements for the servicing of the state of its formation or such Receivables, selling Participations, making Originator Loans and conducting such other activities as a corporation under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the applicable Receivables Purchase Agreement and each other instrument or agreement it deems necessary or appropriate to proper administration hereof and to permit and effectuate the transactions contemplated hereby.carry out its primary activities;
(ii) Except Not less than one member of Seller's Board of Directors (the "Independent Directors") shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of any Amphenol Person or any of its Affiliates. Seller's Board of Directors shall not approve, or take any other action to cause, the commencement of a voluntary case or other proceeding with respect to Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian or other similar official for Seller unless in each case all of the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors' fiduciary duty shall be to Seller (and creditors) and not to Seller's shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with any Amphenol Person or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for any Amphenol Person;
(iv) Any employee, consultant or agent of Seller will be compensated from Seller's own bank accounts for services provided to Seller except as provided herein in this respect of Servicer's Fee. Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to Seller by payment of the Servicer's Fee;
(v) Seller will contract with Servicer to perform for Seller all operations required on a daily basis to service its Receivables. Seller will pay Servicer a monthly fee based on the level of Receivables being managed by Servicer. Seller will not incur any material indirect or overhead expenses for items shared between Seller and any Amphenol Person which are not reflected in the Servicer's Fee. To the extent, if any, that Seller and any Amphenol Person share items of expenses not reflected in the Servicer's Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Amphenol shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents and the Liquidity Agreement, maintain including, without limitation, legal, commitment, agency and other fees;
(vi) Seller's operating expenses will not be paid by any Amphenol Person unless Seller shall have agreed in writing with such Amphenol Person to reimburse such Amphenol Person for any such payments;
(vii) Seller will have its own deposit, securities separate mailing address and stationery;
(viii) Seller's books and records will be maintained separately from those of every other account or accounts, Amphenol Person;
(ix) Any financial statements of any Amphenol Person which are consolidated to include Seller will contain detailed notes clearly stating that Seller is a separate corporate entity and has sold ownership interests in Seller's accounts receivable;
(x) Seller's assets will be maintained in a manner that facilitates their identification and segregation from those of any Affiliate other Amphenol Person;
(xi) Seller will strictly observe corporate formalities in its dealings with each Amphenol Person, and funds or other assets of such Transferor, with financial institutions. The funds of such Transferor Seller will not be diverted to any other Person or for other than the company use of such Transferor, and, except as may be expressly permitted by this Agreement or the applicable Receivables Purchase Agreement, the funds of such Transferor shall not be commingled with those of any other Amphenol Person.
(iii) Ensure that, to the extent that it shares the same officers . Seller shall not maintain joint bank accounts or other employees depository accounts to which any Amphenol Person (other than Amphenol in its capacity as Servicer or any other Originator in its capacity as a Servicer Person) has independent access. None of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall Seller's funds will at any time be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts pooled with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit funds of any other Amphenol Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all material transactions between such Transferor and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds or loan money to such Transferor, and no Affiliate of such Transferor will otherwise guaranty debts of such Transferor.;
(xii) Other than organizational expenses Seller shall pay to the appropriate Amphenol Person the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers Seller and any other Amphenol Person, but Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as expressly provided hereina direct or contingent beneficiary or loss payee, pay all expensesunder any such insurance policy, indebtedness and with respect to any amounts payable due to occurrences or events related to any other obligations incurred by it using its own funds.Amphenol Person;
(xiii) Not enter into any guaranty, Seller will maintain arm's length relationships with each Amphenol Person. Any Amphenol Person that renders or otherwise become liable, with respect furnishes services to or hold its assets or creditworthiness out as being available Seller will be compensated by Seller at market rates for the payment of any obligation of any Affiliate of such Transferor nor shall such Transferor make any loans to any Person.services; and
(xiv) Ensure that Neither Seller nor any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall Amphenol Person will be issued separately from, but may or will hold itself out to be consolidated with, any reports prepared responsible for any of its Affiliates so long as such consolidated reports contain footnotes describing the effect debts of the transactions between such Transferor other or the decisions or actions respecting the daily business and such Affiliate and also state that the assets of such Transferor are not available to pay creditors affairs of the Affiliateother.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Amphenol Corp /De/)
