Separate Corporate Existence. Take all reasonable steps (including, without limitation, all steps that the Administrative Agent or any Facility Agent may from time to time reasonably request) to maintain the Borrower’s identity as a separate legal entity from the Servicer and to make it manifest to third parties that the Borrower is an entity with assets and liabilities distinct from those of any other Transaction Party and each other Affiliate thereof. Without limiting the generality of the foregoing, the Borrower shall: (i) be a limited liability company whose primary activities are restricted in its limited liability company agreement to (A) purchasing or otherwise acquiring, owning, holding, granting security interests in Pool Receivables, the Related Security, the Collections and the other Collateral with respect thereto, (B) entering into agreements for the selling and servicing of the Pool Receivables, and (C) conducting such other activities as it deems are related or incidental to and necessary, convenient or advisable for the accomplishment of the foregoing activities; (ii) not engage in any business or activity, or incur any Indebtedness or liability, other than as expressly permitted by the Facility Documents; (iii) at all times maintain at least one independent manager (the “Independent Manager”), who shall be an individual who (A) is not, and has not at any time during the five-year period prior to his or her appointment as Independent Manager been, a direct, indirect or beneficial owner, employee, director, stockholder, member, partner, attorney or counsel, officer, customer or supplier of the Performance Guarantor, the Servicer, any Originator or any their respective Affiliates (other than his or her service as an independent manager or in a similar capacity of any such Person), (B) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) shall not at any time serve as a trustee in bankruptcy for any Transaction Party or any of their respective other Affiliates; (iv) maintain the requirement that the Borrower’s limited liability company agreement at all times provide (A) that the Borrower’s Board of Managers (as defined in its limited liability company agreement) shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Board of Managers, including the Independent Manager (as defined in its limited liability company agreement), shall approve the taking of such action in writing before the taking of such action, and (B) that such provision cannot be amended without the unanimous written consent of the Board of Managers, including the Independent Manager; (v) maintain (A) its assets and transactions separately from those of any other Transaction Party or any Affiliate thereof and reflect such assets and transactions in financial statements separate and distinct from those of any other Transaction Party or any Affiliate thereof and evidence such assets and transactions by appropriate entries in books and records separate and distinct from those of any other Transaction Party or any Affiliate thereof and (B) records of all intercompany debits and credits and transfers of funds made by the Originators on its behalf; (vi) (A) prepare its unaudited financial statements separately from those of any other Transaction Party or any Affiliate thereof and (B) insure that any consolidated financial statements of any other Transaction Party or any Affiliate thereof that are filed with the SEC or any other governmental agency or are furnished to any creditors of any other Transaction Party or any Affiliate thereof will include notes clearly stating that the Borrower is a separate corporate entity and that its assets are available first and foremost to satisfy the claims of the creditors of the Borrower; (vii) maintain an arm’s length relationship with unaffiliated parties, and not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction; (viii) pay its own operating expenses and liabilities, including the allocated expenses of services provided by employees of any of its Affiliates, if any, only out of its own funds; (ix) conduct its business in its own name and from a clearly identified office space separate from the office space of its Affiliates, which may be located in the same facility as the offices of one or more of its Affiliates. Clearly identify its offices, if any, as its offices and, to the extent that the Borrower and its Affiliates have offices in the same location, allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including services performed by an employee of an Affiliate; (x) at all times hold itself out to the public under its own name as a legal and economic entity separate from any Person, and strictly comply with all organizational formalities to maintain its separate existence; (xi) have stationery and other business forms and a telephone number separate from that of NRG Retail LLC or its Affiliates; (xii) maintain adequate capital and a sufficient number of employees, if any employees are so needed, in light of its contemplated business purposes, transactions and liabilities and in order to pay its debts as they become due; (xiii) cause its Board of Directors to meet at least annually or act pursuant to written consent, make and retain minutes of such meetings and otherwise observe all limited liability company formalities as a distinct entity; (xiv) not hold out its credit or assets as being available to satisfy the obligations of any other Person nor pledge its assets for the benefit of any other Person (except for Permitted Liens) nor make any intercompany loans to any Affiliate of the Borrower nor accept any intercompany loans from any Affiliate of the Borrower (except as permitted by the Facility Documents, including the Subordinated Note); (xv) not incur, create or assume any indebtedness, or guarantee the indebtedness of any other Person, other than as expressly permitted under the Facility Documents; (xvi) not maintain a joint account with any other Person or otherwise commingle its assets with assets of any other Person and, except as otherwise contemplated in Section 2.06, not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals except as otherwise contemplated hereunder or under the Receivables Sale Agreement with respect to its or the Servicer’s administration of Collections; (xvii) maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person; (xviii) not direct or participate in the management of any other Transaction Party’s operations; and (xix) take all other actions reasonably necessary on its part to operate its business and perform its obligations under the Facility Documents in a manner consistent with the factual assumptions described in the legal opinions with respect to non-consolidation or true sale matters of Shearman & Sterling LLP delivered to the Administrative Agent and the Facility Agents pursuant to Section 3.01 hereof, or any back-up certificates related thereto.
Appears in 3 contracts
Samples: Receivables Loan and Servicing Agreement (NRG Energy, Inc.), Receivables Loan and Servicing Agreement (NRG Energy, Inc.), Receivables Loan and Servicing Agreement (NRG Energy, Inc.)
Separate Corporate Existence. Take all reasonable steps (including, without limitation, all steps that the Administrative Agent or any Facility Agent may from time to time reasonably request) to maintain the Borrower’s identity as a separate legal entity from the Servicer and to make it manifest to third parties that the Borrower is an entity with assets and liabilities distinct from those of any other Transaction Party and each other Affiliate thereof. Without limiting the generality of the foregoing, the Borrower The Transferor shall:
(i) be a limited liability company whose primary activities are restricted maintain its corporate existence and remain in its limited liability company agreement to (A) purchasing or otherwise acquiring, owning, holding, granting security interests in Pool Receivables, good standing under the Related Security, the Collections and the other Collateral with respect thereto, (B) entering into agreements for the selling and servicing laws of the Pool Receivables, and (C) conducting such other activities as it deems are related or incidental to and necessary, convenient or advisable for the accomplishment State of the foregoing activitiesDelaware;
(ii) not engage in any business or activityobserve all corporate procedures required by its certificate of incorporation, or incur any Indebtedness or liability, other than as expressly permitted by its bylaws and the Facility Documentscorporation law of the State of Delaware;
(iii) ensure that (x) the business and affairs of the Transferor are at all times maintain at least one independent manager managed by or under the direction of its Board of Directors, (the “Independent Manager”)y) its Board of Directors shall have duly authorized all corporate actions requiring such authorization and, who shall be an individual who (Az) is not, and has not at any time during the five-year period prior to his or her appointment as Independent Manager been, a direct, indirect or beneficial owner, employee, director, stockholder, member, partner, attorney or counsel, officer, customer or supplier of the Performance Guarantorwhen necessary, the Servicer, any Originator or any their respective Affiliates (other than his or her service as an independent manager or in a similar capacity of any such Person), (B) has at least three years of employment experience with one or more entities that provide, in the ordinary course of Transferor shall have obtained proper authorization for corporate action from its businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) shall not at any time serve as a trustee in bankruptcy for any Transaction Party or any of their respective other Affiliatesstockholder;
(iv) maintain the requirement that the Borrower’s limited liability company agreement at all times provide (A) that the Borrower’s Board of Managers includes at least two Independent Directors (as such term is defined in its limited liability company agreement) shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Board certificate of Managers, including the Independent Manager (as defined in its limited liability company agreement), shall approve the taking of such action in writing before the taking of such action, and (B) that such provision cannot be amended without the unanimous written consent incorporation of the Board of Managers, including the Independent ManagerTransferor);
(v) maintain (A) its assets separate corporate records and transactions separately books of account from those of any other Transaction Party or any Affiliate thereof and reflect such assets keep correct and transactions in financial statements separate and distinct from those of any other Transaction Party or any Affiliate thereof and evidence such assets and transactions by appropriate entries in complete books and records separate of account and distinct from those minutes of any the meetings and other Transaction Party or any Affiliate thereof proceedings of its stockholder and (B) records Board of all intercompany debits and credits and transfers of funds made by the Originators on its behalfDirectors;
(vi) (A) prepare its unaudited financial statements separately from those pay the fair market rent for any office space located in the office of any other Transaction Party or any Affiliate thereof and (B) insure that any consolidated financial statements a fair share of any other Transaction Party or any Affiliate thereof that are filed with the SEC or any other governmental agency or are furnished to any creditors of any other Transaction Party or any Affiliate thereof will include notes clearly stating that the Borrower is a separate corporate entity and that its assets are available first and foremost to satisfy the claims of the creditors of the Borroweroverhead costs;
(vii) maintain an arm’s length relationship with unaffiliated parties, separate bank accounts and books of account from those of its Affiliates and ensure that its funds and other assets shall at all times be readily distinguishable from the funds and other assets of its Affiliates and not enter into any transaction be commingled with an Affiliate the funds or other assets of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transactionits Affiliates;
(viii) pay from its own operating expenses and liabilitiesseparate funds all material liabilities incurred by it, including material operating and administrative expenses; provided that the allocated organizational expenses of the Transferor and expenses relating to the preparation, negotiation, execution and delivery of the documentation with respect to the issuance of the Certificates or notes that it may issue from time to time may be paid by an Affiliate. No general overhead or administrative expenses of any Affiliate shall be charged or otherwise allocated to the Transferor unless such general overhead or administrative expenses are directly attributable to services provided by employees to or for the account of any of its Affiliates, if any, only out of its own funds;the Transferor.
(ix) conduct its business solely in its own name so as not to mislead others as to its identity or the identity of any Affiliate. All oral and written communications of the Transferor, including without limitation letters, invoices, purchase orders, contracts, statements, and applications shall be made solely in the name of the Transferor;
(x) not make any guaranty with respect to the obligations of any Affiliate and no Affiliate shall make any guaranty with respect to the obligations of the Transferor;
(xi) ensure that there will be no intercompany debt between the Transferor and any Affiliate; provided, that the stockholder of the Transferor may contribute capital to the Transferor in such amounts as are necessary to assure that such Transfer has adequate capital for its business and the Transferor may issue subordinated notes in the amount and manner specified in the Receivables Purchase Agreement;
(xii) act solely in its own name and from a clearly identified office space separate from through its duly authorized officers or agents in the office space conduct of its Affiliates, which may be located in the same facility as the offices of one or more of business and at all times maintain an arm's length relationship with its Affiliates. Clearly identify its offices, if any, The Transferor shall not: (v) hold itself out as its offices and, having agreed to pay or become liable for the debts of any Affiliate; (w) fail to correct any known misrepresentation with respect to the extent that Transferor's agreement to pay or become liable for the Borrower and its Affiliates have offices in the same location, allocate fairly and reasonably debts of any overhead expenses that are shared with an Affiliate, including services performed by an employee of an Affiliate;
; (x) at all times hold itself out operate or purport to operate as an integrated, single economic unit with any Affiliate in its dealings with any other Person; (y) seek or obtain credit or incur any obligation to any Person based upon the public under assets of an Affiliate or unaffiliated entity; or (z) induce any Person reasonably to rely on the creditworthiness of any Affiliate in its own name as a legal and economic entity separate from any Person, and strictly comply dealings with all organizational formalities to maintain its separate existence;
(xi) have stationery and other business forms and a telephone number separate from that of NRG Retail LLC or its Affiliates;
(xii) maintain adequate capital and a sufficient number of employees, if any employees are so needed, in light of its contemplated business purposes, transactions and liabilities and in order to pay its debts as they become due;the Transferor; and
(xiii) cause disclose in its Board annual financial statements the effects of Directors to meet at least annually or act the transactions contemplated herein and in each Receivables Purchase Agreement in accordance with generally accepted accounting principles. Such financial statements shall (x) clearly indicate the separate existence of the Transferor and its Affiliates, (y) reflect the Transferor's separate assets and liabilities and (z) record the purchase of the Receivables pursuant to written consent, make and retain minutes of such meetings and otherwise observe all limited liability company formalities the applicable Receivables Purchase Agreement as a distinct entity;
(xiv) not hold out its credit or assets as being available to satisfy the obligations of any other Person nor pledge its assets for the benefit of any other Person (except for Permitted Liens) nor make any intercompany loans to any Affiliate of the Borrower nor accept any intercompany loans from any Affiliate of the Borrower (except as permitted by the Facility Documents, including the Subordinated Note);
(xv) not incur, create or assume any indebtedness, or guarantee the indebtedness of any other Person, other than as expressly permitted purchase under the Facility Documents;
(xvi) not maintain a joint account with any other Person or otherwise commingle its assets with assets of any other Person and, except as otherwise contemplated in Section 2.06, not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals except as otherwise contemplated hereunder or under the Receivables Sale Agreement with respect to its or the Servicer’s administration of Collections;
(xvii) maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(xviii) not direct or participate in the management of any other Transaction Party’s operations; and
(xix) take all other actions reasonably necessary on its part to operate its business and perform its obligations under the Facility Documents in a manner consistent with the factual assumptions described in the legal opinions with respect to non-consolidation or true sale matters of Shearman & Sterling LLP delivered to the Administrative Agent and the Facility Agents pursuant to Section 3.01 hereof, or any back-up certificates related theretogenerally accepted accounting principles.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Partners First Receivables Funding Corp), Pooling and Servicing Agreement (Credit Card Receivables Funding Corp)
Separate Corporate Existence. Take all reasonable steps (includingEach of the Borrower and Holdings shall, without limitationand shall cause each of their respective Subsidiaries to, take all steps that as requested by the Administrative Agent or any Facility Agent may from time to time reasonably requestto (i) to maintain the Borrower’s continue its identity as a separate legal entity from SIRIUS and its Affiliates (other than the Servicer Borrower, Holdings and to their respective Subsidiaries) and (ii) make it manifest apparent to third parties Persons that the Borrower it is an entity with assets and liabilities distinct from those of SIRIUS and its Affiliates (other than the Borrower, Holdings and their respective Subsidiaries) and is not a division of SIRIUS or any of its Affiliates (other Transaction Party than the Borrower, Holdings and each other Affiliate thereoftheir respective Subsidiaries). Without limiting the generality of the foregoingforegoing and in addition to and consistent with the covenants set forth herein, each of the Borrower and Holdings shall, and shall cause each of their respective Subsidiaries to, take such actions as shall be required in order that:
(a) to the extent, if any, that it and SIRIUS (or any Affiliate thereof other than Holdings, the Borrower shall:
(ior their respective Subsidiaries) share items of expenses such as legal, auditing and other professional services, such expenses will be a limited liability company whose primary activities are restricted in its limited liability company agreement allocated pursuant to (A) purchasing or otherwise acquiring, owning, holding, granting security interests in Pool Receivables, the Related Security, the Collections and the other Collateral with respect thereto, (B) entering into agreements for the selling and servicing of the Pool Receivables, and (C) conducting such other activities as it deems are related or incidental to and necessary, convenient or advisable for the accomplishment of the foregoing activitiesJoint Services Agreement;
(iib) its operating expenses will not engage in any business or activity, or incur any Indebtedness or liability, other than be paid by SIRIUS except as expressly permitted contemplated by the Facility DocumentsJoint Services Agreement;
(iii) at all times maintain at least one independent manager (the “Independent Manager”), who shall be an individual who (A) is not, and has not at any time during the five-year period prior to his or her appointment as Independent Manager been, a direct, indirect or beneficial owner, employee, director, stockholder, member, partner, attorney or counsel, officer, customer or supplier of the Performance Guarantor, the Servicer, any Originator or any their respective Affiliates (other than his or her service as an independent manager or in a similar capacity of any such Person), (B) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) shall not at any time serve as a trustee in bankruptcy for any Transaction Party or any of their respective other Affiliates;
(iv) maintain the requirement that the Borrower’s limited liability company agreement at all times provide (A) that the Borrower’s Board of Managers (as defined in its limited liability company agreement) shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Board of Managers, including the Independent Manager (as defined in its limited liability company agreement), shall approve the taking of such action in writing before the taking of such action, and (B) that such provision cannot be amended without the unanimous written consent of the Board of Managers, including the Independent Manager;
(v) maintain (Ac) its assets books and transactions records will be maintained separately from those of any other Transaction Party SIRIUS;
(d) its assets will be maintained in a manner that facilitates their identification and segregation from those of the SIRIUS or any Affiliate thereof and reflect such assets and transactions (other than Holdings, the Borrower or their respective Subsidiaries);
(e) it will strictly observe corporate formalities in financial statements separate and distinct from those of any other Transaction Party its dealings with Sirius or any Affiliate thereof and evidence such (other than Holdings, the Borrower or their respective Subsidiaries) and, other than pursuant to the Joint Services Agreement, its funds or other assets and transactions by appropriate entries in books and records separate and distinct from will not be commingled with those of any other Transaction Party SIRIUS or any Affiliate thereof and (B) records of all intercompany debits and credits and transfers of funds made by the Originators on its behalf;
(vi) (A) prepare its unaudited financial statements separately from those of any other Transaction Party or any Affiliate thereof and (B) insure that any consolidated financial statements of any other Transaction Party or any Affiliate thereof that are filed with the SEC or any other governmental agency or are furnished to any creditors of any other Transaction Party or any Affiliate thereof will include notes clearly stating that than Holdings, the Borrower is a separate corporate entity and that its assets are available first and foremost to satisfy the claims of the creditors of the Borrower;
(vii) maintain an arm’s length relationship with unaffiliated parties, and not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(viii) pay its own operating expenses and liabilities, including the allocated expenses of services provided by employees of any of its Affiliates, if any, only out of its own funds;
(ix) conduct its business in its own name and from a clearly identified office space separate from the office space of its Affiliates, which may be located in the same facility as the offices of one or more of its Affiliates. Clearly identify its offices, if any, as its offices and, to the extent that the Borrower and its Affiliates have offices in the same location, allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including services performed by an employee of an Affiliate;
(x) at all times hold itself out to the public under its own name as a legal and economic entity separate from any Person, and strictly comply with all organizational formalities to maintain its separate existence;
(xi) have stationery and other business forms and a telephone number separate from that of NRG Retail LLC or its Affiliates;
(xii) maintain adequate capital and a sufficient number of employees, if any employees are so needed, in light of its contemplated business purposes, transactions and liabilities and in order to pay its debts as they become due;
(xiii) cause its Board of Directors to meet at least annually or act pursuant to written consent, make and retain minutes of such meetings and otherwise observe all limited liability company formalities as a distinct entity;
(xiv) not hold out its credit or assets as being available to satisfy the obligations of any other Person nor pledge its assets for the benefit of any other Person (except for Permitted Liens) nor make any intercompany loans to any Affiliate of the Borrower nor accept any intercompany loans from any Affiliate of the Borrower (except as permitted by the Facility Documents, including the Subordinated Notetheir respective Subsidiaries);
(xvf) not incur, create or assume any indebtedness, or guarantee the indebtedness of any other Person, other than as expressly permitted under the Facility Documents;
(xvi) it shall not maintain a joint account with any other Person or otherwise commingle its assets with assets of any other Person and, except as otherwise contemplated in Section 2.06, not maintain bank accounts or other depository accounts to which SIRIUS or any Affiliate is an account partythereof (other than Holdings, into which any Affiliate makes deposits the Borrower or from which any Affiliate their respective Subsidiaries) has the power to make withdrawals except as otherwise contemplated hereunder or under the Receivables Sale Agreement with respect to its or the Servicer’s administration of Collectionsindependent access;
(xviig) maintain its assets in such a manner that it none of the Borrower’s funds will not at any time be costly pooled with any funds of SIRIUS or difficult to segregateany Affiliate thereof (other than Holdings, ascertain the Borrower or identify its individual assets from those of any other Persontheir respective Subsidiaries);
(xviiih) not direct it will maintain arm’s-length relationships with SIRIUS and any Affiliate thereof (other than Holdings, the Borrower or participate in the management of any other Transaction Party’s operationstheir respective Subsidiaries); and
(xixi) take all other it will not hold itself out to be responsible for the debts of SIRIUS or the decisions or actions reasonably necessary on its part to operate its respecting the daily business and perform its obligations under the Facility Documents in a manner consistent with the factual assumptions described in the legal opinions with respect to non-consolidation or true sale matters affairs of Shearman & Sterling LLP delivered to the Administrative Agent and the Facility Agents pursuant to Section 3.01 hereof, or any back-up certificates related theretoSIRIUS.
Appears in 2 contracts
Samples: Credit Agreement (Xm Investment LLC), Credit Agreement (Xm Investment LLC)
Separate Corporate Existence. Take The Seller hereby acknowledges that the Trustee and the Investor Certificateholders are, and will be, entering into the transactions contemplated by the Transaction Documents in reliance upon Seller's identity as a legal entity separate from the Originator, Servicer and any other Person. Therefore, Seller shall take all reasonable steps (including, without limitation, all steps that the Administrative Agent or any Facility Agent may from time to time reasonably request) to maintain the Borrower’s identity its existence as a corporation separate legal entity and apart from the Servicer Originator, the Servicer, and to make it manifest to third parties that the Borrower is an entity with assets and liabilities distinct from those of any other Transaction Party and each other Affiliate thereofof the Originator or the Servicer. Without limiting the generality of the foregoing, the Borrower Seller shall:
(i) be a limited liability company whose primary activities are restricted in (a) observe the corporate procedures required by its limited liability company agreement to (A) purchasing or otherwise acquiringcertificate of incorporation, owning, holding, granting security interests in Pool Receivables, the Related Security, the Collections its by-laws and the corporate law of the State of Delaware, including, without limitation, holding separate director and shareholder meetings from those of any other Collateral Person and otherwise ensuring at all times that it is maintained as a separate corporate entity from any other Person and (b) not amend or modify any provision of its Certificate of Incorporation or by-laws unless the Rating Agency Condition shall have been satisfied with respect thereto, to such amendment or modification;
(Ba) entering into agreements for the selling and servicing ensure that its Board of the Pool ReceivablesDirectors duly authorizes all of its corporate actions, and (Cb) conducting such keep correct and complete books and records of account separate from those of any other activities as it deems are related or incidental to Person, and correct and complete minutes of the meetings and other proceedings of its stockholders and Board of Directors, and (c) where necessary, convenient obtain proper authorization from its directors or advisable stockholders, as appropriate, for the accomplishment of the foregoing activities;
(ii) not engage in any business or activity, or incur any Indebtedness or liability, other than as expressly permitted by the Facility Documentscorporate action;
(iii) provide for its operating expenses and liabilities from its own funds and maintain deposit accounts and other bank accounts separate from those of the Originator, the Servicer, or any of their respective Affiliates;
(iv) act solely in its corporate name and through its duly authorized officers or agents in the conduct of its business and ensure that neither the Originator nor the Servicer nor any of their respective Affiliates controls any corporate decisions made by it;
(v) to the extent that it obtains any services from the Originator or the Servicer or any of their respective Affiliates, ensure that the terms of such arrangements are comparable to those that would be obtained in an arm's-length transaction;
(vi) ensure that its assets are not commingled with those of the Originator, the Servicer, or any other Person;
(vii) maintain separate corporate records and books of account from those of the Originator, the Servicer or any other Person;
(viii) not conduct any business or engage in any activities other than in accordance with its Certificate of Incorporation;
(a) not hold itself out, or permit itself to be held out, as having agreed to pay, or as being liable for, the debts of the Originator, the Servicer, or any other Person; (b) maintain an arm's-length relationship with the Originator and the Servicer and their respective Affiliates with respect to any transactions between itself and such other Person; and (c) continuously maintain as official records the resolutions, agreements and other instruments underlying the transactions contemplated by this Agreement;
(x) select and at all times maintain at least one independent manager as its Independent Director (as defined in the “Seller's Certificate of Incorporation) a Person who meets the following qualifications (which qualifications are in addition to those set forth in the its Certificate of Incorporation): the Independent Manager”), who Director shall be an individual who have (Aa) is not, and has not at any time during the five-year period prior to his or her appointment as Independent Manager been, a direct, indirect or beneficial owner, employee, director, stockholder, member, partner, attorney or counsel, officer, customer or supplier of the Performance Guarantor, the Servicer, any Originator or any their respective Affiliates (other than his or her service experience as an independent manager director for a corporation whose charter documents require the unanimous written consent of all independent directors thereof before such corporation could consent to the institution of bankruptcy or in insolvency proceedings against it or could file a similar capacity of petition seeking relief under any such Person)applicable federal or state law relating to bankruptcy, and (Bb) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) shall not at any time serve as a trustee in bankruptcy for any Transaction Party or any of their respective other Affiliates;
(iv) maintain the requirement that the Borrower’s limited liability company agreement at all times provide (A) that the Borrower’s Board of Managers (as defined in its limited liability company agreement) shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Board of Managers, including the Independent Manager (as defined in its limited liability company agreement), shall approve the taking of such action in writing before the taking of such action, and (B) that such provision cannot be amended without the unanimous written consent of the Board of Managers, including the Independent Manager;
(v) maintain (A) its assets and transactions separately from those of any other Transaction Party or any Affiliate thereof and reflect such assets and transactions in financial statements separate and distinct from those of any other Transaction Party or any Affiliate thereof and evidence such assets and transactions by appropriate entries in books and records separate and distinct from those of any other Transaction Party or any Affiliate thereof and (B) records of all intercompany debits and credits and transfers of funds made by the Originators on its behalf;
(vi) (A) prepare its unaudited financial statements separately from those of any other Transaction Party or any Affiliate thereof and (B) insure that any consolidated financial statements of any other Transaction Party or any Affiliate thereof that are filed with the SEC or any other governmental agency or are furnished to any creditors of any other Transaction Party or any Affiliate thereof will include notes clearly stating that the Borrower is a separate corporate entity and that its assets are available first and foremost to satisfy the claims of the creditors of the Borrower;
(vii) maintain an arm’s length relationship with unaffiliated parties, and not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(viii) pay its own operating expenses and liabilities, including the allocated expenses of services provided by employees of any of its Affiliates, if any, only out of its own funds;
(ix) conduct its business in its own name and from a clearly identified office space separate from the office space of its Affiliates, which may be located in the same facility as the offices of one or more of its Affiliates. Clearly identify its offices, if any, as its offices and, to the extent that the Borrower and its Affiliates have offices in the same location, allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including services performed by an employee of an Affiliate;
(x) at all times hold itself out to the public under its own name as a legal and economic entity separate from any Person, and strictly comply with all organizational formalities to maintain its separate existence;
(xi) have stationery and other business forms and a telephone number separate from that of NRG Retail LLC or its Affiliates;
(xii) maintain adequate capital and a sufficient number of employees, if any employees are so needed, in light of its contemplated business purposes, transactions and liabilities and in order to pay its debts as they become due;
(xiii) cause its Board of Directors to meet at least annually or act pursuant to written consent, make and retain minutes of such meetings and otherwise observe all limited liability company formalities as a distinct entity;
(xiv) not hold out its credit or assets as being available to satisfy the obligations of any other Person nor pledge its assets for the benefit of any other Person (except for Permitted Liens) nor make any intercompany loans to any Affiliate of the Borrower nor accept any intercompany loans from any Affiliate of the Borrower (except as permitted by the Facility Documents, including the Subordinated Note);
(xv) not incur, create or assume any indebtedness, or guarantee the indebtedness of any other Person, other than as expressly permitted under the Facility Documents;
(xvi) not maintain a joint account with any other Person or otherwise commingle its assets with assets of any other Person and, except as otherwise contemplated in Section 2.06, not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals except as otherwise contemplated hereunder or under the Receivables Sale Agreement with respect to its or the Servicer’s administration of Collections;
(xvii) maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(xviii) not direct or participate in the management of any other Transaction Party’s operations; and
(xix) take all other actions reasonably necessary on its part to operate its business and perform its obligations under the Facility Documents in a manner consistent with the factual assumptions described in the legal opinions with respect to non-consolidation or true sale matters of Shearman & Sterling LLP delivered to the Administrative Agent and the Facility Agents pursuant to Section 3.01 hereof, or any back-up certificates related thereto.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Charming Shoppes Receivables Corp), Pooling and Servicing Agreement (Charming Shoppes Master Trust)
Separate Corporate Existence. Take all reasonable steps (including, without limitation, all steps that the Administrative Agent or any Facility Agent may from time to time reasonably request) to maintain the Borrower’s identity as a separate legal entity from the Servicer and to make it manifest to third parties that the Borrower is an entity with assets and liabilities distinct from those of any other Transaction Party and each other Affiliate thereof. Without limiting the generality of the foregoing, the Borrower shall:
(i) be a limited liability company whose primary activities are restricted in its limited liability company agreement to (A) purchasing or otherwise acquiring, owning, holding, granting security interests in Pool Receivables, the Related Security, the Collections and the other Collateral with respect thereto, (B) entering into agreements for the selling and servicing of the Pool Receivables, and (C) conducting such other activities as it deems are related or incidental to and necessary, convenient or advisable for the accomplishment of the foregoing activities;
(ii) not engage in any business or activity, or incur any Indebtedness or liability, other than as expressly permitted by the Facility Documents;
(iii) at all times maintain at least one independent manager (the “Independent Manager”), who shall be an individual who (A) is not, and has not at any time during the five-year period prior to his or her appointment as Independent Manager been, a direct, indirect or beneficial owner, employee, director, stockholder, member, partner, attorney or counsel, officer, customer or supplier of the Performance Guarantor, the Servicer, any Originator or any their respective Affiliates (other than his or her service as an independent manager or in a similar capacity of any such Person), (B) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) shall not at any time serve as a trustee in bankruptcy for any Transaction Party or any of their respective other Affiliates;
(iv) maintain the requirement that the Borrower’s limited liability company agreement at all times provide (A) that the Borrower’s Board of Managers (as defined in its limited liability company agreement) shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Board of Managers, including the Independent Manager (as defined in its limited liability company agreement), shall approve the taking of such action in writing before the taking of such action, and (B) that such provision cannot be amended without the unanimous written consent of the Board of Managers, including the Independent Manager;
(v) maintain (A) its assets and transactions separately from those of any other Transaction Party or any Affiliate thereof and reflect such assets and transactions in financial statements separate and distinct from those of any other Transaction Party or any Affiliate thereof and evidence such assets and transactions by appropriate entries in books and records separate and distinct from those of any other Transaction Party or any Affiliate thereof and (B) records of all intercompany debits and credits and transfers of funds made by the Originators on its behalf;
(vi) (A) prepare its unaudited financial statements separately from those of any other Transaction Party or any Affiliate thereof and (B) insure that any consolidated financial statements of any other Transaction Party or any Affiliate thereof that are filed with the SEC or any other governmental agency or are furnished to any creditors of any other Transaction Party or any Affiliate thereof will include notes clearly stating that the Borrower is a separate corporate entity and that its assets are available first and foremost to satisfy the claims of the creditors of the Borrower;
(vii) maintain an arm’s length relationship with unaffiliated parties, and not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(viii) pay its own operating expenses and liabilities, including the allocated expenses of services provided by employees of any of its Affiliates, if any, only out of its own funds;
(ix) conduct its business in its own name and from a clearly identified office space separate from the office space of its Affiliates, which may be located in the same facility as the offices of one or more of its Affiliates. Clearly identify its offices, if any, as its offices and, to the extent that the Borrower and its Affiliates have offices in the same location, allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including services performed by an employee of an Affiliate;
(x) at all times hold itself out to the public under its own name as a legal and economic entity separate from any Person, and strictly comply with all organizational formalities to maintain its separate existence;
(xi) have stationery and other business forms and a telephone number separate from that of NRG Retail LLC or its Affiliates;
(xii) maintain adequate capital and a sufficient number of employees, if any employees are so needed, in light of its contemplated business purposes, transactions and liabilities and in order to pay its debts as they become due;
(xiii) cause its Board of Directors to meet at least annually or act pursuant to written consent, make and retain minutes of such meetings and otherwise observe all limited liability company formalities as a distinct entity;
(xiv) not hold out its credit or assets as being available to satisfy the obligations of any other Person nor pledge its assets for the benefit of any other Person (except for Permitted Liens) nor make any intercompany loans to any Affiliate of the Borrower nor accept any intercompany loans from any Affiliate of the Borrower (except as permitted by the Facility Documents, including the Subordinated Note);
(xv) not incur, create or assume any indebtedness, or guarantee the indebtedness of any other Person, other than as expressly permitted under the Facility Documents;
(xvi) not maintain a joint account with any other Person or otherwise commingle its assets with assets of any other Person and, except as otherwise contemplated in Section 2.06, not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals except as otherwise contemplated hereunder or under the Receivables Sale Agreement with respect to its or the Servicer’s administration of Collections;
(xvii) maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(xviii) not direct or participate in the management of any other Transaction Party’s operations; and
(xix) take all other actions reasonably necessary on its part to operate its business and perform its obligations under the Facility Documents in a manner consistent with the factual assumptions described in the legal opinions with respect to non-consolidation or true sale matters of Shearman & Sterling LLP and White & Case LLP delivered to the Administrative Agent and the Facility Agents pursuant to Section 3.01 hereof, or any back-up certificates related thereto.
Appears in 2 contracts
Samples: Receivables Loan and Servicing Agreement (NRG Energy, Inc.), Receivables Loan and Servicing Agreement (NRG Energy, Inc.)
Separate Corporate Existence. Take Each 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 (including, without limitation, all steps that to continue the Administrative Agent or any Facility Agent may from time to time reasonably request) to maintain the BorrowerSeller’s identity as a separate legal entity from the Servicer and to make it manifest apparent to third parties Persons that the Borrower Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Transaction Party Person, and each is not a division of AFC or any other Affiliate thereofPerson. Without limiting the generality of the foregoingforegoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Borrower shallSeller and AFC shall take such actions as shall be required in order that:
(i) The Seller will be a limited liability company purpose corporation whose primary activities are restricted in its limited liability company agreement articles of incorporation to (A) purchasing or otherwise acquiringReceivables from the Originator, owning, holding, granting security interests in Pool Receivables, the Related Security, the Collections and the other Collateral with respect thereto, (B) entering into agreements for the selling and servicing of the Pool such Receivables, selling undivided interests in such Receivables and (C) conducting such other activities as it deems are related necessary or incidental appropriate to and necessary, convenient or advisable for the accomplishment of the foregoing carry out its primary activities;; 722297046 96333265 I\14053553.1
(ii) not engage in any business or activity, or incur any Indebtedness or liability, other Not less than as expressly permitted by the Facility Documents;
(iii) at all times maintain at least one independent manager member of Seller’s Board of Directors (the “Independent ManagerDirectors”), who ) shall be an individual individuals who (A) is not, and has are not at any time during the five-year period prior to his or her appointment as Independent Manager been, a direct, indirect or beneficial ownerstockholders, employeeofficers, directordirectors, stockholderemployees, memberaffiliates, partnerassociates, attorney customers or counsel, officer, customer or supplier suppliers of the Performance Guarantor, the Servicer, any Originator or any their respective Affiliates (other than his or her service as an independent manager or in a similar capacity of any such Person), (B) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) shall not at any time serve as a trustee in bankruptcy for any Transaction Party or any of their respective other Affiliates;
(iv) maintain the requirement that the Borrower’s limited liability company agreement at all times provide (A) that the Borrower. The Seller’s Board of Managers (as defined in its limited liability company agreement) Directors shall not approve, or take any other action to cause the filing of, commencement of a voluntary bankruptcy petition case or other proceeding with respect to the Borrower 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 the Board of Managers, including in each case the Independent Manager (as defined in its limited liability company agreement), Directors shall approve the taking of such action in writing before 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, and (B) that such provision canthere shall be selected a replacement Independent Director who shall not be amended without an individual within the unanimous written consent proscriptions of the Board first sentence of Managersthis 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, including (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 ManagerDirector;
(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 respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) maintain 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; 722297046 96333265 I\14053553.1
(Avi) 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 assets own separate mailing address and transactions stationery;
(viii) The Seller’s books and records will be maintained separately from those of any other Transaction Party the Originator or any Affiliate thereof and reflect such assets and transactions in financial statements separate and distinct from those of any other Transaction Party or any Affiliate thereof and evidence such assets and transactions by appropriate entries in books and records separate and distinct from those of any other Transaction Party or any Affiliate thereof and (B) records of all intercompany debits and credits and transfers of funds made by the Originators on its behalfthereof;
(viix) (A) prepare its unaudited financial statements separately from those of any other Transaction Party or any Affiliate thereof and (B) insure that any consolidated Any financial statements of any other Transaction Party the Originator or any Affiliate thereof that KAR which are filed with consolidated to include the SEC or any other governmental agency or are furnished to any creditors of any other Transaction Party or any Affiliate thereof Seller will include contain detailed notes clearly stating that the Borrower Seller is a separate corporate entity and that its assets are available first and foremost to satisfy the claims of the creditors of the Borrower;
(vii) maintain an arm’s length relationship with unaffiliated parties, and not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(viii) pay its own operating expenses and liabilities, including the allocated expenses of services provided by employees of any of its Affiliates, if any, only out of its own funds;
(ix) conduct its business in its own name and from a clearly identified office space separate from the office space of its Affiliates, which may be located has sold ownership interests in the same facility as the offices of one or more of its Affiliates. Clearly identify its offices, if any, as its offices and, to the extent that the Borrower and its Affiliates have offices in the same location, allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including services performed by an employee of an AffiliateSeller’s accounts receivable;
(x) at all times hold itself out to The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the public under its own name as a legal Originator and economic entity separate from any Person, and strictly comply with all organizational formalities to maintain its separate existenceAffiliate thereof;
(xi) have stationery The Seller will strictly observe corporate formalities in its dealings with the Originator and other business forms and a telephone number separate from that of NRG Retail LLC or its Affiliates;
(xii) maintain adequate capital and a sufficient number of employees, if any employees are so needed, in light of its contemplated business purposes, transactions and liabilities and in order to pay its debts as they become due;
(xiii) cause its Board of Directors to meet at least annually or act pursuant to written consent, make and retain minutes of such meetings and otherwise observe all limited liability company formalities as a distinct entity;
(xiv) not hold out its credit or assets as being available to satisfy the obligations of any other Person nor pledge its assets for the benefit of any other Person (except for Permitted Liens) nor make any intercompany loans to any Affiliate thereof, and funds or other assets of the Borrower nor accept any intercompany loans from Seller will not be commingled with those of the Originator or any Affiliate of the Borrower (except as permitted by the Facility Documents, including the Subordinated Note);
(xv) not incur, create or assume any indebtedness, or guarantee the indebtedness of any other Person, other than as expressly permitted under the Facility Documents;
(xvi) thereof. The Seller shall not maintain a joint account with any other Person or otherwise commingle its assets with assets of any other Person and, except as otherwise contemplated in Section 2.06, not maintain bank accounts or other depository accounts to which the Originator or any Affiliate is an account party, into which thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate makes deposits or from which any Affiliate has thereof;
(xii) The Seller shall pay to the power to make withdrawals except as otherwise contemplated hereunder or under Originator the Receivables Sale Agreement marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to its any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or the Servicer’s administration of Collections;
(xvii) maintain its assets in such indirectly, be named or enter into an agreement to be named, as a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(xviii) not direct or participate in contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the management of Originator or any Affiliate thereof (other Transaction Party’s operationsthan the Seller); and
(xixxiii) take all The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise 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 itself out to be responsible for the debts of the other or the decisions or actions reasonably necessary on its part to operate its respecting the daily business and perform its obligations under affairs of the Facility Documents in a manner consistent with the factual assumptions described in the legal opinions with respect to non-consolidation or true sale matters of Shearman & Sterling LLP delivered to the Administrative Agent and the Facility Agents pursuant to Section 3.01 hereof, or any back-up certificates related theretoother.
Appears in 1 contract
Samples: Receivables Purchase Agreement (KAR Auction Services, Inc.)
Separate Corporate Existence. Take all reasonable steps (includingThe Servicer and Borrower hereby acknowledge that the Lenders and the Agent are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon each of the Borrower’s and the Transferor’s identity being that of a discrete legal entity, without limitationseparate from Aspen. Therefore, from and after the date hereof, the Borrower and the Servicer shall take all steps that the Administrative Agent or any Facility Agent may from time to time reasonably request) required to maintain and continue the Borrower’s identity as a separate legal entity from the Servicer and to make it manifest apparent to third parties Persons that the Borrower is an entity with assets and liabilities distinct from those of Aspen, the Transferor and any other Transaction Party Person, and each is not a division of Aspen, the Transferor or any other Affiliate thereofPerson. Without limiting the generality of the foregoing, the Borrower shalland the Servicer shall take such actions as shall be required in order that:
(i) The Borrower will be a special-purpose limited liability company whose primary activities are restricted in its limited liability company agreement to (A) purchasing or otherwise acquiringowning the Pool Assets, owning, holding, granting security interests in Pool Receivables, the Related Security, the Collections and the other Collateral with respect thereto, (B) entering into agreements for the selling Transaction Documents to which it is a party, borrowing under this Agreement and servicing of the Pool Receivables, and (C) conducting such other activities as it deems are related necessary or incidental appropriate to and necessary, convenient or advisable for the accomplishment of the foregoing carry out its primary activities;
(ii) not engage in any business or activity, or incur any Indebtedness or liability, other Not less than as expressly permitted by one member of the Facility Documents;
(iii) at all times maintain at least one independent manager Borrower’s Board of Directors (the “Independent ManagerDirector”), who ) shall be an individual who (A) is not, and has not at any time during been for the five-year period prior to his or her appointment as Independent Manager beenfive years preceding the Closing Date, (i) a direct, indirect or beneficial ownerstockholder, officer, director (other than as a director of the Borrower and the Transferor), employee, directoraffiliate or associate of the Borrower, stockholderthe Transferor or Aspen or any of their Affiliates, member, partner, attorney or counsel, officer, (ii) a customer or supplier of the Performance GuarantorBorrower, the Servicer, any Originator Transferor or Aspen or any of their respective Affiliates (other than his a supplier to which the Borrower, the Transferor or her service as an independent manager Aspen and their Affiliates has paid no more than $50,000 in Aspen’s and its Affiliates’ then-current fiscal year or in any of the three immediately preceding fiscal years); or (iii) a similar capacity customer or supplier of any such Person)the Borrower, (B) has at least three years of employment experience with one or more entities that providethe Transferor, in the ordinary course of its businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) shall not at any time serve as a trustee in bankruptcy for any Transaction Party Aspen or any of their respective other Affiliates;
Affiliates whose (ivA) maintain the requirement that sales to the Borrower, the Transferor, Aspen or any of their Affiliates, in the case of a supplier, represent a material portion of such supplier’s gross sales; or (B) accounts receivable owing to the Borrower, the Transferor, Aspen or any of their Affiliates, in the case of a customer, represent a material portion of such customer’s total accounts receivable. The limited liability company agreement at all times of the Borrower shall provide that (Ai) that the Borrower’s Board of Managers (as defined in its limited liability company agreement) Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Board of Managers, including the Independent Manager (as defined in its limited liability company agreement), Director shall approve the taking of such action in writing before prior to the taking of such action, and (Bii) that such provision cannot be amended without the unanimous prior written consent of the Board Independent Director;
(iii) The Independent Director shall not at any time serve as a trustee in bankruptcy for the Borrower, the Transferor, Aspen or any Affiliate thereof;
(iv) Any employee, consultant or agent of Managersthe Borrower will be compensated from funds of the Borrower, including as appropriate, for services provided to the Independent ManagerBorrower. Except as otherwise provided herein, the Borrower will engage no agents other than a Servicer for the Pool Receivables, which Servicer will be fully compensated for services rendered to the Borrower by payment of the Servicer’s Fee;
(v) maintain (A) The Borrower will contract with the Servicer to perform all operations required on a daily basis to service its assets and transactions separately from those Pool Receivables. The Borrower will pay the Servicer a monthly fee based on the level of any other Transaction Party or any Affiliate thereof and reflect such assets and transactions in financial statements separate and distinct from those of any other Transaction Party or any Affiliate thereof and evidence such assets and transactions Pool Receivables being serviced by appropriate entries in books and records separate and distinct from those of any other Transaction Party or any Affiliate thereof and (B) records of all intercompany debits and credits and transfers of funds made Servicer reasonably equivalent to the fee which would be required by the Originators on its behalfan independent third-party servicer;
(vi) The Borrower will not incur any material indirect or overhead expenses for items shared among the Borrower, the Transferor and Aspen (Aor any other Affiliate thereof). To the extent, if any, that the Borrower, the Transferor and Aspen (or any other Affiliate thereof) prepare share items of expenses 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 Aspen shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal fees;
(vii) The Borrower’s operating expenses will not be paid by the Transferor, Aspen or any other Affiliate thereof except as permitted under the terms of this Agreement or otherwise consented to by the Agent;
(viii) The Borrower will have its unaudited financial statements own separate phone extension and stationery;
(ix) The Borrower’s books and records will be maintained separately from those of the Transferor, Aspen and any other Transaction Party or any Affiliate thereof and thereof;
(Bx) insure that any consolidated All audited financial statements of any other Transaction Party the Transferor, Aspen or any Affiliate thereof that are filed with consolidated to include the SEC or any other governmental agency or are furnished to any creditors of any other Transaction Party or any Affiliate thereof Borrower will include contain detailed notes clearly stating that (A) all of the Borrower’s assets are owned by the Borrower, (B) all of the Transferor’s assets are owned by the Transferor, (C) the Borrower is a separate corporate legal entity and that its assets are available first and foremost to satisfy (D) the claims of the creditors of the Borrower;
(vii) maintain an arm’s length relationship with unaffiliated parties, and not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(viii) pay its own operating expenses and liabilities, including the allocated expenses of services provided by employees of any of its Affiliates, if any, only out of its own funds;
(ix) conduct its business in its own name and from Transferor is a clearly identified office space separate from the office space of its Affiliates, which may be located in the same facility as the offices of one or more of its Affiliates. Clearly identify its offices, if any, as its offices and, to the extent that the Borrower and its Affiliates have offices in the same location, allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including services performed by an employee of an Affiliate;
(x) at all times hold itself out to the public under its own name as a legal and economic entity separate from any Person, and strictly comply with all organizational formalities to maintain its separate existenceentity;
(xi) have stationery The Borrower’s assets will be maintained in a manner that facilitates their identification and other business forms and a telephone number separate segregation from that those of NRG Retail LLC Aspen, the Transferor or its Affiliatesany Affiliate thereof;
(xii) maintain adequate capital and a sufficient number of employeesThe Borrower will strictly observe corporate formalities in its dealings with the Transferor, if any employees are so needed, in light of its contemplated business purposes, transactions and liabilities and in order to pay its debts as they become due;
(xiii) cause its Board of Directors to meet at least annually Aspen or act pursuant to written consent, make and retain minutes of such meetings and otherwise observe all limited liability company formalities as a distinct entity;
(xiv) not hold out its credit or assets as being available to satisfy the obligations of any other Person nor pledge its assets for the benefit of any other Person (except for Permitted Liens) nor make any intercompany loans to any Affiliate thereof, and funds or other assets of the Borrower nor accept any intercompany loans from will not be commingled with those of the Transferor, Aspen or any Affiliate of the thereof. The Borrower (except as permitted by the Facility Documents, including the Subordinated Note);
(xv) not incur, create or assume any indebtedness, or guarantee the indebtedness of any other Person, other than as expressly permitted under the Facility Documents;
(xvi) shall not maintain a joint account with any other Person or otherwise commingle its assets with assets of any other Person and, except as otherwise contemplated in Section 2.06, not maintain bank accounts or other depository accounts to which the Transferor, Aspen or any Affiliate is an account party, into which thereof (other than Aspen in its capacity as Servicer) has independent access. Other than to the extent on deposit in any Affiliate makes deposits collection accounts or from which any Affiliate has the power to make withdrawals except as otherwise contemplated hereunder hereunder, none of the Borrower’s funds will at any time be pooled with any funds of Aspen or under the Receivables Sale Agreement with respect to its or the Servicer’s administration of Collections;
(xvii) maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(xviii) not direct or participate in the management of any other Transaction Party’s operationsAffiliate thereof; and
(xixxiii) take all The Borrower will maintain arm’s-length relationships with the Transferor, Aspen and any Affiliate thereof. Any Person that renders or otherwise furnishes services to the Borrower will be compensated thereby at market rates for such services it renders or otherwise furnishes thereto except as otherwise provided in this Agreement. Except as contemplated in the Transaction Documents, neither the Borrower nor Aspen will be or will hold itself out to be responsible for the debts of the other or the decisions or actions reasonably necessary on its part to operate its respecting the daily business and perform its obligations under affairs of the Facility Documents in a manner consistent with the factual assumptions described in the legal opinions with respect to non-consolidation or true sale matters of Shearman & Sterling LLP delivered to the Administrative Agent and the Facility Agents pursuant to Section 3.01 hereof, or any back-up certificates related theretoother.
Appears in 1 contract
Separate Corporate Existence. Take all reasonable steps (includingThe Servicer and Borrower hereby acknowledge that the Lenders and the Agent are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon each of the Borrower’s and the Transferor’s identity being that of a discrete legal entity, without limitationseparate from Aspen. Therefore, from and after the date hereof, the Borrower and the Servicer shall take all steps that the Administrative Agent or any Facility Agent may from time to time reasonably request) required to maintain and continue the Borrower’s identity as a separate legal entity from the Servicer and to make it manifest apparent to third parties Persons that the Borrower is an entity with assets and liabilities distinct from those of Aspen, the Transferor and any other Transaction Party Person, and each is not a division of Aspen, the Transferor or any other Affiliate thereofPerson. Without limiting the generality of the foregoing, the Borrower shalland the Servicer shall take such actions as shall be required in order that:
(i) The Borrower will be a special-purpose limited liability company whose primary activities are restricted in its limited liability company agreement to (A) purchasing or otherwise acquiringowning the Pool Assets, owning, holding, granting security interests in Pool Receivables, the Related Security, the Collections and the other Collateral with respect thereto, (B) entering into agreements for the selling Transaction Documents to which it is a party, borrowing under this Agreement and servicing of the Pool Receivables, and (C) conducting such other activities as it deems are related necessary or incidental appropriate to and necessary, convenient or advisable for the accomplishment of the foregoing carry out its primary activities;
(ii) not engage in any business or activity, or incur any Indebtedness or liability, other Not less than as expressly permitted by one member of the Facility Documents;
(iii) at all times maintain at least one independent manager Borrower’s Board of Directors (the “Independent ManagerDirector”), who ) shall be an individual who (A) is not, and has not at any time during been for the five-year period prior to his or her appointment as Independent Manager beenfive years preceding the Closing Date, (i) a direct, indirect or beneficial ownerstockholder, officer, director (other than as a director of the Borrower and the Transferor), employee, directoraffiliate or associate of the Borrower, stockholderthe Transferor or Aspen or any of their Affiliates, member, partner, attorney or counsel, officer, (ii) a customer or supplier of the Performance GuarantorBorrower, the Servicer, any Originator Transferor or Aspen or any of their respective Affiliates (other than his a supplier to which the Borrower, the Transferor or her service as an independent manager Aspen and their Affiliates has paid no more than $50,000 in Aspen’s and its Affiliates’ then-current fiscal year or in any of the three immediately preceding fiscal years); or (iii) a similar capacity customer or supplier of any such Person)the Borrower, (B) has at least three years of employment experience with one or more entities that providethe Transferor, in the ordinary course of its businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) shall not at any time serve as a trustee in bankruptcy for any Transaction Party Aspen or any of their respective other Affiliates;
Affiliates whose (ivA) maintain the requirement that sales to the Borrower, the Transferor, Aspen or any of their Affiliates, in the case of a supplier, represent a material portion of such supplier’s gross sales; or (B) accounts receivable owing to the Borrower, the Transferor, Aspen or any of their Affiliates, in the case of a customer, represent a material portion of such customer’s total accounts receivable. The limited liability company agreement at all times of the Borrower shall provide that (Ai) that the Borrower’s Board of Managers (as defined in its limited liability company agreement) Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Board of Managers, including the Independent Manager (as defined in its limited liability company agreement), Director shall approve the taking of such action in writing before prior to the taking of such action, and (Bii) that such provision cannot be amended without the unanimous prior written consent of the Board Independent Director;
(iii) The Independent Director shall not at any time serve as a trustee in bankruptcy for the Borrower, the Transferor, Aspen or any Affiliate thereof;
(iv) Any employee, consultant or agent of Managersthe Borrower will be compensated from funds of the Borrower, including as appropriate, for services provided to the Independent ManagerBorrower. Except as otherwise provided herein, the Borrower will engage no agents other than a Servicer for the Pool Receivables, which Servicer will be fully compensated for services rendered to the Borrower by payment of the Servicer’s Fee;
(v) maintain (A) The Borrower will contract with the Servicer to perform all operations required on a daily basis to service its assets and transactions separately from those Pool Receivables. The Borrower will pay the Servicer a monthly fee based on the level of any other Transaction Party or any Affiliate thereof and reflect such assets and transactions in financial statements separate and distinct from those of any other Transaction Party or any Affiliate thereof and evidence such assets and transactions Pool Receivables being serviced by appropriate entries in books and records separate and distinct from those of any other Transaction Party or any Affiliate thereof and (B) records of all intercompany debits and credits and transfers of funds made Servicer reasonably equivalent to the fee which would be required by the Originators on its behalfan independent third-party servicer;
(vi) The Borrower will not incur any material indirect or overhead expenses for items shared among the Borrower, the Transferor and Aspen (Aor any other Affiliate thereof). To the extent, if any, that the Borrower, the Transferor and Aspen (or any other Affiliate thereof) prepare share items of expenses 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 Aspen shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal fees;
(vii) The Borrower’s operating expenses will not be paid by the Transferor, Aspen or any other Affiliate thereof except as permitted under the terms of this Agreement or otherwise consented to by the Agent;
(viii) The Borrower will have its unaudited financial statements own separate phone extension and stationery;
(ix) The Borrower’s books and records will be maintained separately from those of the Transferor, Aspen and any other Transaction Party or any Affiliate thereof and thereof;
(Bx) insure that any consolidated All audited financial statements of any other Transaction Party the Transferor, Aspen or any Affiliate thereof that are filed with consolidated to include the SEC or any other governmental agency or are furnished to any creditors of any other Transaction Party or any Affiliate thereof Borrower will include contain detailed notes clearly stating that (A) all of the Borrower’s assets are owned by the Borrower, (B) all of the Transferor’s assets are owned by the Transferor, (C) the Borrower is a separate corporate legal entity and that its assets are available first and foremost to satisfy (D) the claims of the creditors of the Borrower;
(vii) maintain an arm’s length relationship with unaffiliated parties, and not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(viii) pay its own operating expenses and liabilities, including the allocated expenses of services provided by employees of any of its Affiliates, if any, only out of its own funds;
(ix) conduct its business in its own name and from Transferor is a clearly identified office space separate from the office space of its Affiliates, which may be located in the same facility as the offices of one or more of its Affiliates. Clearly identify its offices, if any, as its offices and, to the extent that the Borrower and its Affiliates have offices in the same location, allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including services performed by an employee of an Affiliate;
(x) at all times hold itself out to the public under its own name as a legal and economic entity separate from any Person, and strictly comply with all organizational formalities to maintain its separate existenceentity;
(xi) have stationery The Borrower’s assets will be maintained in a manner that facilitates their identification and other business forms and a telephone number separate segregation from that those of NRG Retail LLC Aspen, the Transferor or its Affiliatesany Affiliate thereof;
(xii) maintain adequate capital and a sufficient number of employeesThe Borrower will strictly observe corporate formalities in its dealings with the Transferor, if any employees are so needed, in light of its contemplated business purposes, transactions and liabilities and in order to pay its debts as they become due;
(xiii) cause its Board of Directors to meet at least annually Aspen or act pursuant to written consent, make and retain minutes of such meetings and otherwise observe all limited liability company formalities as a distinct entity;
(xiv) not hold out its credit or assets as being available to satisfy the obligations of any other Person nor pledge its assets for the benefit of any other Person (except for Permitted Liens) nor make any intercompany loans to any Affiliate thereof, and funds or other assets of the Borrower nor accept any intercompany loans from will not be commingled with those of the Transferor, Aspen or any Affiliate of the thereof. The Borrower (except as permitted by the Facility Documents, including the Subordinated Note);
(xv) not incur, create or assume any indebtedness, or guarantee the indebtedness of any other Person, other than as expressly permitted under the Facility Documents;
(xvi) shall not maintain a joint account with any other Person or otherwise commingle its assets with assets of any other Person and, except as otherwise contemplated in Section 2.06, not maintain bank accounts or other depository accounts to which the Transferor, Aspen or any Affiliate is an account partythereof (other than Aspen in its capacity as Servicer) has independent access. Other than to the extent on deposit in the Collection Accounts or as otherwise contemplated hereunder, into which none of the Borrower’s funds will at any time be pooled with any funds of Aspen or any Affiliate makes deposits or from which thereof;
(xiii) The Borrower will maintain arm’s-length relationships with the Transferor, Aspen and any Affiliate has thereof. Any Person that renders or otherwise furnishes services to the power to make withdrawals Borrower will be compensated thereby at market rates for such services it renders or otherwise furnishes thereto except as otherwise provided in this Agreement. Except as contemplated hereunder in the Transaction Documents, neither the Borrower nor Aspen will be or under will hold itself out to be responsible for the Receivables Sale Agreement with respect to its debts of the other or the Servicer’s administration decisions or actions respecting the daily business and affairs of Collections;
(xvii) maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(xviii) not direct or participate in the management of any other Transaction Party’s operationsother; and
(xix) take all other actions reasonably necessary on its part to operate its business and perform its obligations under the Facility Documents in a manner consistent with the factual assumptions described in the legal opinions with respect to non-consolidation or true sale matters of Shearman & Sterling LLP delivered to the Administrative Agent and the Facility Agents pursuant to Section 3.01 hereof, or any back-up certificates related thereto.
Appears in 1 contract
Separate Corporate Existence. Take all reasonable steps (including, without limitation, all steps that the Administrative Agent or any Facility Agent may from time to time reasonably request) to maintain the BorrowerSeller’s identity as a separate legal entity from the Servicer TRW and to make it manifest to third parties that the Borrower Seller is an entity with assets and liabilities distinct from those of any other Transaction Party TRW and each other Affiliate thereofthereof (it being understood that the preceding clause does not require Obligors to be notified of the Seller’s interests in the Receivables). Without limiting the generality of the foregoing, the Borrower shall:
Seller shall (i) be a limited liability company whose primary activities are restricted in its limited liability company agreement to (A) purchasing or otherwise acquiring, owning, holding, granting security interests in Pool Receivables, the Related Security, the Collections and the other Collateral with respect thereto, (B) entering into agreements for the selling and servicing of the Pool Receivables, and (C) conducting such other activities as it deems are related or incidental to and necessary, convenient or advisable for the accomplishment of the foregoing activities;
(ii) not engage in any business or activity, or incur any Indebtedness or liability, other than as expressly permitted by the Facility Documents;
(iii) at all times maintain have at least one independent manager (the 1) “Independent Manager”), who shall be an individual who (A) is not, Director” as defined in and has not at any time during as required under the five-year period prior to his or her appointment as Independent Manager been, a direct, indirect or beneficial owner, employee, director, stockholder, member, partner, attorney or counsel, officer, customer or supplier Seller’s certificate of the Performance Guarantor, the Servicer, any Originator or any their respective Affiliates (other than his or her service as an independent manager or in a similar capacity of any such Person), (B) has incorporation and at least three years of employment experience with one or more entities that provide, in (1) officer responsible for managing the ordinary course of its businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and Seller’s day-to-day operations; (C) shall not at any time serve as a trustee in bankruptcy for any Transaction Party or any of their respective other Affiliates;
(ivii) maintain the requirement that the BorrowerSeller’s limited liability company agreement at all times provide (A) that the Borrower’s Board of Managers (as defined in its limited liability company agreement) shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Board of Managers, including the Independent Manager (as defined in its limited liability company agreement), shall approve the taking of such action in writing before the taking of such action, books and (B) that such provision cannot be amended without the unanimous written consent of the Board of Managers, including the Independent Manager;
(v) maintain (A) its assets and transactions separately records separate from those of any other Transaction Party or any Affiliate thereof and reflect such assets and transactions in financial statements separate and distinct from those of any other Transaction Party or any Affiliate thereof and evidence such assets and transactions by appropriate entries in books and records separate and distinct from those of any other Transaction Party or any Affiliate thereof and (B) maintain records of all intercompany debits and credits and transfers of funds made by the Originators TRW on its behalf;
; (viiii) (A) prepare its unaudited financial statements separately from except as otherwise contemplated under Section 2.04, use reasonable efforts to minimize the commingling of funds or other assets of the Seller with those of any other Transaction Party or any Affiliate thereof and (B) insure that any consolidated financial statements of any other Transaction Party or any Affiliate thereof that are filed with the SEC or any other governmental agency or are furnished to any creditors of any other Transaction Party or any Affiliate thereof will include notes clearly stating that the Borrower is a separate corporate entity and that its assets are available first and foremost to satisfy the claims of the creditors of the Borrower;
(vii) maintain an arm’s length relationship with unaffiliated partiesAffiliate, and not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(viii) pay its own operating expenses and liabilities, including the allocated expenses of services provided by employees of any of its Affiliates, if any, only out of its own funds;
(ix) conduct its business in its own name and from a clearly identified office space separate from the office space of its Affiliates, which may be located in the same facility as the offices of one or more of its Affiliates. Clearly identify its offices, if any, as its offices and, to the extent that the Borrower and its Affiliates have offices in the same location, allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including services performed by an employee of an Affiliate;
(x) at all times hold itself out to the public under its own name as a legal and economic entity separate from any Person, and strictly comply with all organizational formalities to maintain its separate existence;
(xi) have stationery and other business forms and a telephone number separate from that of NRG Retail LLC or its Affiliates;
(xii) maintain adequate capital and a sufficient number of employees, if any employees are so needed, in light of its contemplated business purposes, transactions and liabilities and in order to pay its debts as they become due;
(xiii) cause its Board of Directors to meet at least annually or act pursuant to written consent, make and retain minutes of such meetings and otherwise observe all limited liability company formalities as a distinct entity;
(xiv) not hold out its credit or assets as being available to satisfy the obligations of any other Person nor pledge its assets for the benefit of any other Person (except for Permitted Liens) nor make any intercompany loans to any Affiliate of the Borrower nor accept any intercompany loans from any Affiliate of the Borrower (except as permitted by the Facility Documents, including the Subordinated Note);
(xv) not incur, create or assume any indebtedness, or guarantee the indebtedness of any other Person, other than as expressly permitted under the Facility Documents;
(xvi) not maintain a joint account with any other Person or otherwise commingle its assets with assets of any other Person and, except as otherwise contemplated in Section 2.06, not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals except as otherwise contemplated hereunder or under the Receivables Sale Agreement with respect to its or the Servicer’s administration of Collections;
Collections (xviiit being understood that certain funds other than Collections are currently being deposited into the Lock-Box Accounts and that none of TRW, the Seller or the Servicer shall be required to instruct the applicable payors to redirect such funds to locations other than the Lock-Box Accounts); (iv) maintain not enter into or permit to exist any transaction (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate which is on terms that are less favorable to the Seller than those that might be obtained in an arm’s length transaction at the time from Persons who are not an Affiliate and which is not evidenced by or pursuant to a written agreement; (v) pay its assets own operating expenses and liabilities (including but not limited to the salaries paid to its employees and any fees paid to its directors) from its own separate assets, although TRW has paid and may pay expenses related to the formation of the Seller; (vi) clearly identify its office (by sign or otherwise) as being separate and distinct from the offices of, or any space occupied by, TRW and its other affiliates even if such office space is leased or subleased from, or is on or near premises occupied by TRW or by such Affiliates and allocate fairly any overhead, if relevant, for shared office space or business facilities or equipment; (vii) will act solely in such a manner that it its own name, through its own officials or representatives where relevant, and will not be costly hold itself out as a “division” or difficult to segregate, ascertain “part” of TRW or identify its individual assets from those of any other Person;
Affiliates; and (xviii) not direct or participate in the management of any other Transaction Party’s operations; and
(xixviii) take all other actions reasonably necessary on its part to operate its business and perform its obligations under the Facility Documents in a manner consistent with the factual assumptions described in the legal opinions with respect to non-consolidation or true sale matters of Shearman & Sterling LLP opinion delivered to the Administrative Agent and the Facility Agents pursuant to Section 3.01 hereof, or any back-up certificates related thereto.
Appears in 1 contract
Separate Corporate Existence. Take all reasonable steps (includingSeller hereby acknowledges that the Lenders and the Agent are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon each of Seller’s and the Purchaser’s identity being that of a discrete legal entity, without limitationseparate from Aspen. Therefore, from and after the date hereof, Seller shall take all steps that the Administrative Agent or any Facility Agent may from time to time reasonably request) required to maintain the Borrowerand continue Seller’s identity as a separate legal entity from the Servicer and to make it manifest apparent to third parties Persons that the Borrower Seller is an entity with assets and liabilities distinct from those of Aspen, the Purchaser and any other Transaction Party Person, and each is not a division of Aspen, the Purchaser or any other Affiliate thereofPerson. Without limiting the generality of the foregoing, the Borrower shallSeller shall take such actions as shall be required in order that:
(i) Seller will be a special-purpose limited liability company whose primary activities are restricted in its limited liability company agreement to (A) purchasing or otherwise acquiring, owning, holding, granting security interests in Pool owning the Transferred Receivables, the Related Security, the Collections and the other Collateral with respect theretoRelated Security, (B) entering into agreements for the Transaction Documents to which it is a party, purchasing assets from Aspen pursuant to the Purchase and Sale Agreement, selling and servicing of the Pool Transferred Receivables, the Collections and (C) the Related Security under this Agreement and conducting such other activities as it deems are related necessary or incidental appropriate to and necessary, convenient or advisable for the accomplishment of the foregoing carry out its primary activities;
(ii) not engage in any business or activity, or incur any Indebtedness or liability, other Not less than as expressly permitted by the Facility Documents;
(iii) at all times maintain at least one independent manager member of Seller’s Board of Directors (the “Independent ManagerDirector”), who ) shall be an individual who (A) is not, and has not at any time during been for the five-year period prior to his or her appointment as Independent Manager beenfive years preceding the Closing Date, (i) a direct, indirect or beneficial ownerstockholder, officer, director (other than as a director of Seller and the Purchaser), employee, directoraffiliate or associate of Seller, stockholderPurchaser or Aspen or any of their Affiliates, member, partner, attorney or counsel, officer, (ii) a customer or supplier of the Performance GuarantorSeller, the Servicer, any Originator Purchaser or Aspen or any of their respective Affiliates (other than his a supplier to which Seller, the Purchaser or her service as an independent manager Aspen and their Affiliates has paid no more than $50,000 in Aspen’s and its Affiliates’ then-current fiscal year or in any of the three immediately preceding fiscal years); or (iii) a similar capacity customer or supplier of any such Person)Seller, (B) has at least three years of employment experience with one or more entities that providethe Purchaser, in the ordinary course of its businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) shall not at any time serve as a trustee in bankruptcy for any Transaction Party Aspen or any of their respective other Affiliates whose (A) sales to Seller, the Purchaser, Aspen or any of their Affiliates;
, in the case of a supplier, represent a material portion of such supplier’s gross sales; or (ivB) maintain accounts receivable owing to the requirement that Seller, the BorrowerPurchaser, Aspen or any of their Affiliates, in the case of a customer, represent a material portion of such customer’s total accounts receivable. The limited liability company agreement at all times of Seller shall provide that (Ai) that the BorrowerSeller’s Board of Managers (as defined in its limited liability company agreement) Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower Seller unless the Board of Managers, including the Independent Manager (as defined in its limited liability company agreement), Director shall approve the taking of such action in writing before prior to the taking of such action, and (Bii) that such provision cannot be amended without the unanimous prior written consent of the Board Independent Director;
(iii) The Independent Director shall not at any time serve as a trustee in bankruptcy for the Seller, the Purchaser, Aspen or any Affiliate thereof;
(iv) Any employee, consultant or agent of ManagersSeller will be compensated from funds of Seller, including the Independent Manageras appropriate, for services provided to Seller. Except as otherwise provided herein, Seller will engage no agents;
(v) maintain Seller will not incur any material indirect or overhead expenses for items shared among Seller, the Purchaser and Aspen (A) its assets and transactions separately from those of or any other Transaction Party Affiliate thereof). To the extent, if any, that Seller, the Purchaser and Aspen (or any other Affiliate thereof thereof) share items of expenses such as legal, auditing and reflect other professional services, such assets expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and transactions in financial statements separate otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Aspen shall pay all expenses relating to the preparation, negotiation, execution and distinct from those delivery of any other the Transaction Party or any Affiliate thereof and evidence such assets and transactions by appropriate entries in books and records separate and distinct from those of any other Transaction Party or any Affiliate thereof and (B) records of all intercompany debits and credits and transfers of funds made by the Originators on its behalfDocuments, including, without limitation, legal fees;
(vi) Seller’s operating expenses will not be paid by the Purchaser, Aspen or any other Affiliate thereof except as permitted under the terms of this Agreement or the Loan Agreement or otherwise consented to by the Agent;
(Avii) prepare Seller will have its unaudited financial statements own separate phone extension and stationery;
(viii) Seller’s books and records will be maintained separately from those of the Purchaser, Aspen and any other Transaction Party or any Affiliate thereof and thereof;
(Bix) insure that any consolidated All audited financial statements of any other Transaction Party the Purchaser, Aspen or any Affiliate thereof that are filed with the SEC or any other governmental agency or are furnished consolidated to any creditors of any other Transaction Party or any Affiliate thereof include Seller will include contain detailed notes clearly stating that (A) all of Seller’s assets are owned by Seller, (B) all of the Borrower Purchaser’s assets are owned by the Purchaser, (C) Seller is a separate corporate legal entity and that its assets are available first and foremost to satisfy (D) the claims of the creditors of the Borrower;
(vii) maintain an arm’s length relationship with unaffiliated parties, and not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(viii) pay its own operating expenses and liabilities, including the allocated expenses of services provided by employees of any of its Affiliates, if any, only out of its own funds;
(ix) conduct its business in its own name and from Purchaser is a clearly identified office space separate from the office space of its Affiliates, which may be located in the same facility as the offices of one or more of its Affiliates. Clearly identify its offices, if any, as its offices and, to the extent that the Borrower and its Affiliates have offices in the same location, allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including services performed by an employee of an Affiliatelegal entity;
(x) at all times hold itself out to Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of Aspen, the public under its own name as a legal and economic entity separate from Purchaser or any Person, and strictly comply with all organizational formalities to maintain its separate existenceAffiliate thereof;
(xi) have stationery and other business forms and a telephone number separate from that of NRG Retail LLC Seller will strictly observe corporate formalities in its dealings with the Purchaser, Aspen or its Affiliates;
(xii) maintain adequate capital and a sufficient number of employees, if any employees are so needed, in light of its contemplated business purposes, transactions and liabilities and in order to pay its debts as they become due;
(xiii) cause its Board of Directors to meet at least annually or act pursuant to written consent, make and retain minutes of such meetings and otherwise observe all limited liability company formalities as a distinct entity;
(xiv) not hold out its credit or assets as being available to satisfy the obligations of any other Person nor pledge its assets for the benefit of any other Person (except for Permitted Liens) nor make any intercompany loans to any Affiliate thereof, and funds or other assets of Seller will not be commingled with those of the Borrower nor accept any intercompany loans from Purchaser, Aspen or any Affiliate of thereof. Other than the Borrower (except as permitted by the Facility DocumentsCollection Account, including the Subordinated Note);
(xv) not incur, create or assume any indebtedness, or guarantee the indebtedness of any other Person, other than as expressly permitted under the Facility Documents;
(xvi) Seller shall not maintain a joint account with any other Person or otherwise commingle its assets with assets of any other Person and, except as otherwise contemplated in Section 2.06, not maintain bank accounts or other depository accounts to which the Purchaser, Aspen or any Affiliate is an account partythereof (other than Aspen in its capacity as Servicer) has independent access. Other than to the extent on deposit in the Collection Accounts or as otherwise contemplated hereunder, into which none of Seller’s funds will at any time be pooled with any funds of Aspen or any Affiliate makes deposits or from which thereof;
(xii) Seller will maintain arm’s-length relationships with the Purchaser, Aspen and any Affiliate has the power thereof. Any Person that renders or otherwise furnishes services to make withdrawals Seller will be compensated thereby at market rates for such services it renders or otherwise furnishes thereto except as otherwise provided in this Agreement. Except as contemplated hereunder or under in the Receivables Sale Agreement with respect Transaction Documents, Seller will not hold itself out to its be responsible for the debts of the other or the Servicer’s administration decisions or actions respecting the daily business and affairs of Collections;
(xvii) maintain its assets in such a manner that it will not be costly Aspen or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(xviii) not direct or participate in the management of any other Transaction Party’s operationsPurchaser; and
(xixxiii) Seller will take all such other actions reasonably as are necessary on its part to operate its business ensure that the facts and perform its obligations under assumptions set forth in the Facility Documents opinion letter issued by Xxxxxx X’Xxxxxxx, XxXxxxxx & Xxxxxx, LLP, as counsel for Seller, in a manner consistent connection with the factual assumptions described closing of this Agreement and relating to substantive consolidation issues, and in the legal opinions with respect to non-consolidation or certificates accompanying such opinion, remain true sale matters of Shearman & Sterling LLP delivered to the Administrative Agent and the Facility Agents pursuant to Section 3.01 hereof, or any back-up certificates related thereto.correct in all material respects at all times..
Appears in 1 contract
Samples: Purchase and Resale Agreement (Aspen Technology Inc /De/)
Separate Corporate Existence. Take The Seller hereby ---------------------------- acknowledges that the Securitization Parties are entering into the transactions contemplated by the Agreement in reliance upon the Seller's identity as a legal entity separate from the Servicer, the Guarantor and each Originator. Therefore, from and after the date hereof, the Seller shall take all reasonable steps (including, without limitation, all steps that to continue the Administrative Agent or any Facility Agent may from time to time reasonably request) to maintain the Borrower’s Seller's identity as a separate legal entity from the Servicer and to make it manifest apparent to third parties Persons that the Borrower Seller is an entity with assets and liabilities distinct from those of the Servicer, the Guarantor, any Originator and any other Transaction Party Person, and each is not a division of the Servicer, the Guarantor, any Originator or any other Affiliate thereofPerson. Without limiting the generality of the foregoingforegoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Borrower shallSeller shall take such actions ------------- ---------- as shall be required in order that:
(i) The Seller will be a limited liability company purpose corporation whose primary activities are restricted in its limited liability company agreement certificate of incorporation to (A) purchasing or otherwise acquiringReceivables from the Originators, owning, holding, granting security interests in Pool Receivables, the Related Security, the Collections and the other Collateral with respect thereto, (B) entering into agreements for the selling and servicing of the Pool such Receivables, selling undivided interests in such Receivables and (C) conducting such other activities as it deems are related necessary or incidental appropriate to and necessary, convenient or advisable for the accomplishment of the foregoing carry out its primary activities;
(ii) not engage in any business or activity, or incur any Indebtedness or liability, other Not less than as expressly permitted by one member of the Facility Documents;
(iii) at all times maintain at least one independent manager Seller's Board of Directors (the “"Independent Manager”), who Director") shall be an individual -------------------- who (A) is not, and has not at any time during the five-year period prior to his or her appointment as Independent Manager been, a direct, indirect or beneficial ownerstockholder, officer, director, employee, directoraffiliate, stockholder, member, partner, attorney or counsel, officerassociate, customer or supplier of the Performance GuarantorServicer, the Servicer, Guarantor or any Originator or any of their respective Affiliates (other than his or her service as Affiliates, except that such member may be an independent manager director of a limited purpose bankruptcy-remote Affiliate of the Servicer, the Guarantor or in a similar capacity of any such Person), (B) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) shall not at any time serve as a trustee in bankruptcy for any Transaction Party or any of their respective other Affiliates;
(iv) maintain the requirement that the Borrower’s limited liability company agreement at all times provide (A) that the Borrower’s an Originator. The Seller's Board of Managers (as defined in its limited liability company agreement) Directors shall not approve, or take any other action to cause the filing of, commencement of a voluntary bankruptcy petition case or other proceeding with respect to the Borrower 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 the Board of Managers, including in each case the Independent Manager (as defined in its limited liability company agreement), Director shall approve the taking of such action in writing before prior to the taking of such action. To the extent permissible under Colorado law, the Independent Director's fiduciary duty shall be to the Seller (and (Bcreditors) that such provision canand not to the Seller's shareholders in respect of any decision of the type described in the preceding sentence. In the event the 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 amended without an individual within the unanimous written consent proscriptions of the Board first sentence of Managersthis clause (ii) or any individual who has any other type of ----------- professional relationship with the Servicer, including the Guarantor, any Originator or any Affiliates thereof 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 ManagerDirector;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for the Servicer, the Guarantor, 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 respect of the Servicer's Fee. The Seller will engage no agents other than a servicer for the Pool Receivables, which servicer will be fully compensated for its services to Seller by payment of the Servicer's Fee;
(v) maintain (A) The Seller will contract with Servicer to perform for the Seller all operations required on a daily basis to service its assets and transactions separately from those Receivables. The Seller will pay Servicer a monthly fee based on the level of Receivables being managed by Servicer. To the extent, if any, that the Seller, the Guarantor, any other Transaction Party Originator or any Affiliate thereof share items of expenses not reflected in the Servicer's Fee, such as legal, auditing and reflect other professional services, such assets expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and transactions in financial statements separate otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Mail-Well I Corporation shall pay all expenses relating to the preparation, negotiation, execution and distinct from those delivery of any the Transaction Documents, including, without limitation, legal and other Transaction Party or any Affiliate thereof and evidence such assets and transactions by appropriate entries in books and records separate and distinct from those of any other Transaction Party or any Affiliate thereof and (B) records of all intercompany debits and credits and transfers of funds made by the Originators on its behalffees;
(vi) The Seller's operating expenses will not be paid by the Servicer, the Guarantor, 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;
(Avii) prepare The Seller will have its unaudited financial statements own separate mailing address and stationery;
(viii) The Seller's books and records will be maintained separately from those of the Servicer, the Guarantor, any other Transaction Party Originator or any Affiliate thereof;
(ix) Any financial statements of the Servicer, the Guarantor, any Originator or any Affiliate thereof and (B) insure that any which are consolidated financial statements of any other Transaction Party or any Affiliate thereof that are filed with to include the SEC or any other governmental agency or are furnished to any creditors of any other Transaction Party or any Affiliate thereof Seller will include contain detailed notes clearly stating that the Borrower Seller is a separate corporate entity and that its assets are available first and foremost to satisfy the claims of the creditors of the Borrower;
(vii) maintain an arm’s length relationship with unaffiliated parties, and not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(viii) pay its own operating expenses and liabilities, including the allocated expenses of services provided by employees of any of its Affiliates, if any, only out of its own funds;
(ix) conduct its business in its own name and from a clearly identified office space separate from the office space of its Affiliates, which may be located has sold ownership interests in the same facility as the offices of one or more of its Affiliates. Clearly identify its offices, if any, as its offices and, to the extent that the Borrower and its Affiliates have offices in the same location, allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including services performed by an employee of an AffiliateSeller's accounts receivable;
(x) at all times hold itself out to The Seller's assets will be maintained in a manner that facilitates their identification and segregation from those of the public under its own name as a legal Servicer, the Guarantor, any Originator and economic entity separate from any Person, and strictly comply with all organizational formalities to maintain its separate existenceAffiliate thereof;
(xi) have stationery The Seller will strictly observe corporate formalities in its dealings with the Servicer, the Guarantor, any Originator and other business forms and a telephone number separate from that of NRG Retail LLC or its Affiliates;
(xii) maintain adequate capital and a sufficient number of employees, if any employees are so needed, in light of its contemplated business purposes, transactions and liabilities and in order to pay its debts as they become due;
(xiii) cause its Board of Directors to meet at least annually or act pursuant to written consent, make and retain minutes of such meetings and otherwise observe all limited liability company formalities as a distinct entity;
(xiv) not hold out its credit or assets as being available to satisfy the obligations of any other Person nor pledge its assets for the benefit of any other Person (except for Permitted Liens) nor make any intercompany loans to any Affiliate thereof, and funds or other assets of the Borrower nor accept Seller will not be commingled with those of the Guarantor, any intercompany loans from Originator or any Affiliate of the Borrower thereof (except as permitted by the Facility Documents, including the Subordinated Note);
(xv) not incur, create or assume any indebtedness, or guarantee the indebtedness of any other Person, other than in their capacity as expressly permitted under the Facility Documents;
(xvi) Servicer or sub-servicer). Seller shall not maintain a joint account with any other Person or otherwise commingle its assets with assets of any other Person and, except as otherwise contemplated in Section 2.06, not maintain bank accounts or other depository accounts to which the Guarantor, any Originator or any Affiliate is an account partythereof (other than in their capacity as Servicer or sub-servicer) has independent access. None of the Seller's funds will at any time be pooled with any funds of the Servicer, into which the Guarantor or any Originator or any Affiliate makes deposits thereof;
(xii) The Seller shall pay to the Servicer, the Guarantor or from which any Affiliate has applicable Originator the power to make withdrawals except as otherwise contemplated hereunder or under marginal increase (or, in the Receivables Sale Agreement absence of such increase, the market amount of its portion) of the premium payable with respect to its 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 Servicer’s administration of Collections;
(xvii) maintain its assets in such a manner that it will not be costly , the Guarantor, any Originator or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(xviii) not direct or participate in the management of any other Transaction Party’s operationsAffiliate thereof; and
(xixxiii) take all The Seller will maintain arm's length relationships with the Servicer, the Guarantor, any Originator and any Affiliate thereof. The Servicer, the Guarantor, any Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Servicer, the Guarantor, any Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions reasonably necessary on its part to operate its respecting the daily business and perform its obligations under affairs of the Facility Documents in a manner consistent other.
(xiv) The Seller shall not cause, or take any action, or omit to take any action, that would be inconsistent with the factual assumptions described in the legal opinions with respect to non-consolidation or true sale matters of Shearman & Sterling LLP delivered to the Administrative Agent Facts and the Facility Agents pursuant to Section 3.01 hereof, or any back-up certificates related theretoAssumptions.
Appears in 1 contract
Separate Corporate Existence. Take The Issuer hereby acknowledges that the Trustee, the Administrative Agent, and the Noteholders are, and will be, entering into the transactions contemplated by the Transaction Documents in reliance upon the Issuer's identity as a legal entity separate from the Sellers, the Servicer and any other Person. Therefore, the Issuer shall take all reasonable steps (including, without limitation, all steps that the Administrative Agent or any Facility Agent may from time to time reasonably request) to maintain the Borrower’s continue its identity as a separate legal entity from the Servicer and to make it manifest apparent to third parties Persons that the Borrower Issuer is an entity with assets and liabilities distinct from those of the Servicer, the Sellers and any other Transaction Party Person, and each that the Issuer is not a division of the Servicer, any of the Sellers or any other Affiliate thereofPerson. Without In that regard, and without limiting the generality of the foregoingforegoing in any manner, the Borrower shall:
Issuer shall (i) be a limited liability company whose primary activities are restricted in maintain its limited liability company agreement to (A) purchasing or otherwise acquiringown board of directors, owning, holding, granting security interests in Pool Receivables, the Related Security, the Collections and the other Collateral with respect thereto, (B) entering into agreements for the selling and servicing of the Pool Receivables, and (C) conducting such other activities as it deems are related or incidental to and necessary, convenient or advisable for the accomplishment of the foregoing activities;
(ii) not engage in any business or activity, or incur any Indebtedness or liability, other than as expressly permitted by the Facility Documents;
(iii) at all times maintain at least two directors and one independent manager (the “Independent Manager”), principal corporate officer who shall be an individual who (A) is not, and has not at any time during the five-year period prior to his or her appointment as Independent Manager been, a direct, indirect or beneficial ownerstockholder, officer, director, employee, directoraffiliate, stockholder, member, partner, attorney or counsel, officerassociate, customer or supplier of the Performance Guarantor, the Servicer, any Originator or any their respective Affiliates (other than his or her service as an independent manager or in Stone Person nor a similar capacity relative of any such Person)thereof, (B) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) shall not at any time serve as nor a trustee in bankruptcy for any Transaction Party or any of their respective other Affiliates;
Stone Person, (iviii) maintain the requirement that the Borrower’s limited liability company agreement at all times provide (A) that the Borrower’s Board of Managers (as defined in its limited liability company agreement) shall not approveseparate and clearly delineated office space evidenced by a written lease, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Board of Managers, including the Independent Manager (as defined in its limited liability company agreement), shall approve the taking of such action in writing before the taking of such action, and (B) that such provision cannot be amended without the unanimous written consent of the Board of Managers, including the Independent Manager;
(v) maintain (A) its assets in a manner which facilitates their identification and transactions separately segregation from those of any other Stone Person, and maintain a separate telephone number which will be answered only in its own name, (iv) conduct all intercompany transactions with other Stone Persons on terms which the Issuer reasonably believes to be on an arm's-length basis, (v) not guarantee any obligation of any other Stone Person, nor have any of its obligations guaranteed by any Stone Person or hold itself out as responsible for the debts of any Stone Person or for the decisions or actions with respect to the business and affairs of any other Stone Person, (vi) shall not, except as otherwise expressly acknowledged under the Transaction Party Documents, permit the commingling or pooling of its funds or other assets with the assets of any Affiliate thereof other Stone Person, (vii) maintain separate deposit and reflect such assets and transactions in other bank accounts to which no other Stone Person (other than as Servicer) has any access, (viii) maintain financial statements records which are separate and distinct from those of any other Transaction Party or any Affiliate thereof and evidence such assets and transactions by appropriate entries in books and records separate and distinct from those of any other Transaction Party or any Affiliate thereof and (B) records of all intercompany debits and credits and transfers of funds made by the Originators on its behalf;
(vi) (A) prepare its unaudited financial statements separately from those of any other Transaction Party or any Affiliate thereof and (B) insure that any consolidated financial statements of any other Transaction Party or any Affiliate thereof that are filed with the SEC or any other governmental agency or are furnished to any creditors of any other Transaction Party or any Affiliate thereof will include notes clearly stating that the Borrower is a separate corporate entity and that its assets are available first and foremost to satisfy the claims of the creditors of the Borrower;
(vii) maintain an arm’s length relationship with unaffiliated partiesStone Person, and not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(viii) pay its own operating expenses and liabilities, including the allocated expenses of services provided by employees of any of its Affiliates, if any, only out of its own funds;
(ix) conduct its business in its own name compensate all employees, consultants and from a clearly identified office space separate agents, or reimburse Stone, from the office space of its AffiliatesIssuer's own funds, which may be located in the same facility as the offices of one or more of its Affiliates. Clearly identify its offices, if any, as its offices and, for services provided to the extent that the Borrower Issuer by such employees, consultants and its Affiliates have offices in the same locationagents, allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including services performed by an employee of an Affiliate;
(x) at all times hold itself out have agreed with Stone Container and the other Sellers to allocate among themselves shared corporate operating services and expenses which are not reflected in the public under its own name as a Servicer Fee (including without limitation the services of shared employees, consultants and agents and reasonable legal and economic entity separate from any Person, and strictly comply with all organizational formalities to maintain its separate existence;
(xi) have stationery and other business forms and a telephone number separate from that of NRG Retail LLC or its Affiliates;
(xii) maintain adequate capital and a sufficient number of employees, if any employees are so needed, in light of its contemplated business purposes, transactions and liabilities and in order to pay its debts as they become due;
(xiii) cause its Board of Directors to meet at least annually or act pursuant to written consent, make and retain minutes of such meetings and otherwise observe all limited liability company formalities as a distinct entity;
(xiv) not hold out its credit or assets as being available to satisfy the obligations of any other Person nor pledge its assets for the benefit of any other Person (except for Permitted Liens) nor make any intercompany loans to any Affiliate of the Borrower nor accept any intercompany loans from any Affiliate of the Borrower (except as permitted by the Facility Documents, including the Subordinated Note);
(xv) not incur, create or assume any indebtedness, or guarantee the indebtedness of any other Person, other than as expressly permitted under the Facility Documents;
(xvi) not maintain a joint account with any other Person or otherwise commingle its assets with assets of any other Person and, except as otherwise contemplated in Section 2.06, not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals except as otherwise contemplated hereunder or under the Receivables Sale Agreement with respect to its or the Servicer’s administration of Collections;
(xvii) maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(xviii) not direct or participate in the management of any other Transaction Party’s operations; and
(xix) take all other actions reasonably necessary on its part to operate its business and perform its obligations under the Facility Documents in a manner consistent with the factual assumptions described in the legal opinions with respect to non-consolidation or true sale matters of Shearman & Sterling LLP delivered to the Administrative Agent and the Facility Agents pursuant to Section 3.01 hereof, or any back-up certificates related thereto.auditing
Appears in 1 contract
Samples: Master Trust Indenture and Security Agreement (Stone Container Corp)
