Separate Existence of the Borrower. Each Loan Party hereby acknowledges that Lenders and the Agents are entering into the transactions contemplated hereby in reliance upon the Borrower’s identity as a legal entity separate from the Servicer and its other Affiliates. Therefore, each Loan Party shall take all steps specifically required by this Agreement or reasonably required by any of the Agents to continue the Borrower’s identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of its Affiliates, and is not a division of Quest Diagnostics or any other Person. Without limiting the foregoing, each Loan Party will take such actions as shall be required in order that: (a) The Borrower will be a limited purpose corporation whose primary activities are restricted in its Certificate of Incorporation to purchasing or otherwise acquiring from the Originators and owning, holding, granting security interests in the Collateral, entering into agreements for the financing and servicing of the Receivables, and conducting such other activities as it deems necessary or appropriate to carry out its primary activities; (b) Not less than one member of the Borrower’s Board of Directors (the “Independent Director”) shall be an individual who is not, and never has been, a direct, indirect or beneficial stockholder, officer, director, employee, affiliate, associate, material supplier or material customer of Quest Diagnostics or any of its Affiliates (other than an Affiliate organized with a limited purpose charter for the purpose of acquiring receivables or other financial assets or intangible property). The certificate of incorporation of the Borrower shall provide that (i) at least one member of the Borrower’s Board of Directors shall be an Independent Director, (ii) the Borrower’s Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Independent Director shall approve the taking of such action in writing prior to the taking of such action and (iii) the provisions requiring an independent director and the provision described in clauses (i) and (ii) of this paragraph (b) cannot be amended without the prior written consent of the Independent Director; (c) The Independent Director shall not at any time serve as a trustee in bankruptcy for the Borrower or any Affiliate thereof; (d) Any director, employee, consultant or agent of the Borrower will be compensated from the Borrower’s funds for services provided to the Borrower. The Borrower will not engage any agents (other than its attorneys, auditors and other professionals) and will not engage any Person other than the Servicer to deal with the Collateral as contemplated by the Transaction Documents; (e) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Collateral. The Borrower will pay the Servicer the Servicer’s Fee pursuant hereto. The Borrower will not incur any material indirect or overhead expenses for items shared with Quest Diagnostics (or any other Affiliate thereof) which are not reflected in the Servicer’s Fee. To the extent, if any, that the Borrower (or any other Affiliate thereof) shares items of expenses not reflected in the Servicer’s Fee, for legal, auditing and other professional services and directors’ fees, 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 Quest Diagnostics shall pay all expenses of the Borrower and, to the extent provided in this Agreement, the Agents relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal, rating agency and other fees; (f) The Borrower’s operating expenses will not be paid by any other Loan Party or other Affiliate of the Borrower; (g) The Borrower will have its own stationery; (h) The books of account, financial reports and records of the Borrower will be maintained separately from those of Quest Diagnostics and each other Affiliate of the Borrower although they may appear in Quest Diagnostics’ consolidated general ledger; (i) Any financial statements of any Loan Party or Affiliate thereof which are consolidated to include the Borrower will contain detailed notes clearly stating that (A) all of the Borrower’s assets are owned by the Borrower, and (B) the Borrower is a separate legal entity with its own separate creditors that will be entitled to be satisfied out of the Borrower’s assets prior to any value in the Borrower becoming available to the Borrower’s equity holders; and the accounting records and any published financial statements of each of the Originators will clearly show that, for accounting purposes, the Receivables and Related Assets have been sold by such Originator to the Borrower; (j) The Borrower’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Servicer and the other Affiliates; (k) Each Affiliate of the Borrower will strictly observe organizational formalities in its dealings with the Borrower, and, except as permitted pursuant to this Agreement with respect to Collections, funds or other assets of the Borrower will not be commingled with those of any of its Affiliates; (l) No Affiliate of the Borrower will maintain joint bank accounts with the Borrower or other depository accounts with the Borrower to which any such Affiliate (other than in the Borrower’s or such Affiliate’s existing or future capacity as the Servicer hereunder or under the Sale Agreement) has independent access, provided that prior to demand by any of the Agents pursuant to Section 7.1(i) to establish a segregated Collateral Account, Collections may be deposited into general accounts of Quest Diagnostics, subject to the obligations of the Servicer hereunder; (m) Each Affiliate of the Borrower will maintain arm’s length relationships with the Borrower, and each Affiliate of the Borrower that renders or otherwise furnishes services or merchandise to the Borrower will be compensated by the Borrower at market rates for such services or merchandise; (n) No Affiliate of the Borrower will be, nor will it hold itself out to be, responsible for the debts of the Borrower or the decisions or actions in respect of the daily business and affairs of the Borrower. Quest Diagnostics and the Borrower will immediately correct any known misrepresentation with respect to the foregoing and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity; (o) The Borrower will keep correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholder and board of directors, as applicable, and the resolutions, agreements and other instruments of the Borrower will be continuously maintained as official records by the Borrower; and (p) The Borrower will conduct its business solely in its own legal name and in a manner separate from the Originators so as not to mislead others with whom they are dealing.
Appears in 2 contracts
Samples: Credit and Security Agreement (Quest Diagnostics Inc), Credit and Security Agreement (Quest Diagnostics Inc)
Separate Existence of the Borrower. Each Loan Party of the Borrower and the Servicer hereby acknowledges that Lenders the Secured Parties, the Group Agents and the Agents Administrative Agent are entering into the transactions contemplated hereby by this Agreement and the other Transaction Documents in reliance upon the Borrower’s identity as a legal entity separate from any Originator, the Servicer and its other their Affiliates. Therefore, each Loan Party of the Borrower and Servicer shall take all steps specifically required by this Agreement or reasonably required by the Administrative Agent or any of the Agents Group Agent to continue the Borrower’s identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of its Affiliatesthe Originators, the Servicer and any other Person, and is not a division of Quest Diagnostics the Originators, the Servicer, its Affiliates or any other Person. Without limiting the foregoinggenerality of the foregoing and in addition to and consistent with the other covenants set forth herein and in the other Transaction Documents, each Loan Party will of the Borrower and the Servicer shall (i) comply with all applicable provisions set forth in Section 9(j) of the Borrower’s Limited Liability Company Agreement (as amended solely in accordance with this Agreement), (ii) not take any action inconsistent with the foregoing or contrary to the related matters set forth or assumed in the opinions of counsel relating to true sale and substantive non-consolidation matters and (iii) take such actions as shall be required in order that:
(a) The Borrower will be a limited purpose corporation whose primary activities are restricted in its Certificate of Incorporation to purchasing or otherwise acquiring from the Originators and owning, holding, granting security interests in the Collateral, entering into agreements for the financing and servicing of the Receivables, and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(b) Not less fewer than one member of the Borrower’s Board board of Directors (managers shall at all times meet the criteria set forth in the definition of “Independent DirectorManager”.
(b) The Borrower and the Servicer shall (A) give written notice to the Administrative Agent of the election or appointment, or proposed election or appointment, of a new Independent Manager of the Borrower, which notice shall be given not later than ten (10) Business Days prior to the date such appointment or election would be effective (except when such election or appointment is necessary to fill a vacancy caused by the death, disability, or incapacity of the existing Independent Manager, or the failure of such Independent Manager to satisfy the criteria for an individual who is notIndependent Manager set forth in the definition thereof, and never has been, a direct, indirect or beneficial stockholder, officer, director, employee, affiliate, associate, material supplier or material customer of Quest Diagnostics or any of its Affiliates (other than an Affiliate organized with a limited purpose charter for the purpose of acquiring receivables or other financial assets or intangible property). The certificate of incorporation of in which case the Borrower shall provide written notice of such election or appointment within one (1) Business Day) and (B) with any such written notice, certify to the Administrative Agent that the Independent Manager satisfies the criteria for an Independent Manager set forth in the definition thereof.
(ic) at least one member of the The Borrower’s Board of Directors Limited Liability Company Agreement shall be an Independent Director, include provisions to the effect that: (iiA) the Borrower’s Board board of Directors managers shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Independent Director Manager shall approve the taking of such action in writing prior to before the taking of such action and (iiiB) the provisions such provision and each other provision requiring an independent director and the provision described in clauses (i) and (ii) of this paragraph (b) Independent Manager cannot be amended without the prior written consent of the Independent Director;Manager.
(cd) The Borrower’s Independent Director Manager shall not at any time serve as a trustee in bankruptcy for the Borrower Borrower, any Originator, the Servicer or any Affiliate thereof;
(d) Any director, employee, consultant or agent of the Borrower will be compensated from the Borrower’s funds for services provided to the Borrowertheir respective Affiliates. The Borrower will not engage any agents (other than its attorneys, auditors and other professionals) and will not engage any Person other than the Servicer to deal with the Collateral as contemplated by the Transaction Documents;
(e) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Collateral. The Borrower will pay the Servicer the Servicer’s Fee pursuant hereto. The Borrower will not incur any material indirect or overhead expenses for items shared with Quest Diagnostics (or any other Affiliate thereof) which are not reflected in the Servicer’s Fee. To the extent, if any, that the Borrower (or any other Affiliate thereof) shares items of expenses not reflected in the Servicer’s Fee, for legal, auditing and other professional services and directors’ fees, 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 Quest Diagnostics shall pay all expenses of the Borrower and, to the extent provided in this Agreement, the Agents relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal, rating agency and other fees;
(f) The Borrower’s operating expenses will not be paid by any other Loan Party or other Affiliate of the Borrower;
(g) The Borrower will have its own stationery;
(h) The books of account, financial reports and records of the Borrower will be maintained separately from those of Quest Diagnostics and each other Affiliate of the Borrower although they may appear in Quest Diagnostics’ consolidated general ledger;
(i) Any financial statements of any Loan Party or Affiliate thereof which are consolidated to include the Borrower will contain detailed notes clearly stating that (A) all of the Borrower’s assets are owned by the Borrower, and (B) the Borrower is a separate legal entity with its own separate creditors that will be entitled to be satisfied out of the Borrower’s assets prior to any value in the Borrower becoming available to the Borrower’s equity holders; and the accounting records and any published financial statements of each of the Originators will clearly show that, for accounting purposes, the Receivables and Related Assets have been sold by such Originator to the Borrower;
(j) The Borrower’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Servicer and the other Affiliates;
(k) Each Affiliate of the Borrower will strictly observe organizational formalities in its dealings with the Borrower, and, except as permitted pursuant to this Agreement with respect to Collections, funds or other assets of the Borrower will not be commingled with those of any of its Affiliates;
(l) No Affiliate of the Borrower will maintain joint bank accounts with the Borrower or other depository accounts with the Borrower to which any such Affiliate (other than in the Borrower’s or such Affiliate’s existing or future capacity as the Servicer hereunder or under the Sale Agreement) has independent access, provided that prior to demand by any of the Agents pursuant to Section 7.1(i) to establish a segregated Collateral Account, Collections may be deposited into general accounts of Quest Diagnostics, subject to the obligations of the Servicer hereunder;
(m) Each Affiliate of the Borrower will maintain arm’s length relationships with the Borrower, and each Affiliate of the Borrower that renders or otherwise furnishes services or merchandise to the Borrower will be compensated by the Borrower at market rates for such services or merchandise;
(n) No Affiliate of the Borrower will be, nor will it hold itself out to be, responsible for the debts of the Borrower or the decisions or actions in respect of the daily business and affairs of the Borrower. Quest Diagnostics and the Borrower will immediately correct any known misrepresentation with respect to the foregoing and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity;
(o) The Borrower will keep correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholder and board of directors, as applicable, and the resolutions, agreements and other instruments of the Borrower will be continuously maintained as official records by the Borrower; and
(p) The Borrower will conduct its business solely in its own legal name and in a manner separate from the Originators so as not to mislead others with whom they are dealing.ARTICLE VIII
Appears in 1 contract
Samples: Receivables Financing Agreement
Separate Existence of the Borrower. Each Loan Party hereby acknowledges that Lenders and the Agents are entering into the transactions contemplated hereby in reliance upon the Borrower’s identity as a legal entity separate from the Servicer and its other Affiliates. Therefore, each Loan Party shall take all steps specifically required by this Agreement or reasonably required by any of the Agents to continue the Borrower’s identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of its Affiliates, and is not a division of Quest Diagnostics BSX or any other PersonPerson (including complying with and causing to be true and correct each of the facts and assumptions contained in the legal opinion of Shearman & Sterling LLP). Without limiting the foregoing, each Loan Party will take such actions as shall be required in order that:: Second Amended and Restated Credit and Security Agreement
(ai) The Borrower will be a limited purpose corporation limited liability company whose primary activities are restricted in its Certificate of Incorporation limited liability company agreement to purchasing or otherwise acquiring from any of the Originators and Originators, owning, holding, granting security interests in the Collateral, entering into agreements for the financing and servicing of the Receivables, and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(bii) Not less than one member of the The Borrower’s Board of Directors independent manager (the “Independent DirectorManager”) shall be an individual who is not, and never has been, a direct, indirect or beneficial stockholder, member, officer, director, employee, affiliate, associate, material supplier or material customer of Quest Diagnostics BSX or any of its Affiliates (other than an Affiliate organized with a limited purpose charter for the purpose of acquiring receivables or other financial assets or intangible property). The certificate of incorporation limited liability company agreement of the Borrower shall provide that (iA) so long as any Obligations are outstanding, the Borrower at all times shall have at least one member of the Borrower’s Board of Directors shall be an Independent DirectorManager, (iiB) the Borrower’s Board of Directors members shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Independent Director Manager shall approve the taking of such action in writing prior to the taking of such action and (iiiC) the provisions requiring an independent director member and the provision provisions described in clauses (iA) and (iiB) of this paragraph (bii) cannot be amended without the prior written consent of the Independent DirectorManager;
(ciii) The Independent Director Manager shall not at any time serve as a trustee in bankruptcy for the Borrower or any Affiliate thereof;
(div) Any director, manager, employee, consultant or agent of the Borrower will be compensated from the Borrower’s funds for services provided to the Borrower. The Borrower will not engage any agents (other than its attorneys, auditors and other professionals) professionals and will not engage a servicer and any Person other than the Servicer to deal with the Collateral as agent contemplated by the Transaction DocumentsDocuments for the Collateral, which servicer will be fully compensated for its services by payment of the Servicing Fee;
(ev) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Collateral. The Borrower will pay the Servicer the Servicer’s Servicing Fee pursuant hereto. The Borrower will not incur any material indirect or overhead expenses for items shared with Quest Diagnostics BSX (or any other Affiliate thereof) which are not reflected in the Servicer’s Servicing Fee. To the extent, if any, that the Borrower (or any other Affiliate thereof) shares items of expenses not reflected in the Servicer’s Servicing Fee, for legal, auditing and other professional services and directors’ fees, 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 Quest Diagnostics BSX shall pay all expenses of the Borrower and, to the extent provided in this Agreement, the Agents relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal, rating agency and other fees;; Second Amended and Restated Credit and Security Agreement
(fvi) The Borrower’s operating expenses will not be paid by any other Loan Party or other Affiliate of the Borrower;
(gvii) The Borrower will have its own stationery;
(hviii) The books of account, financial reports and records of the Borrower will be maintained separately from those of Quest Diagnostics BSX and each other Affiliate of the Borrower although they may appear in Quest Diagnostics’ consolidated general ledgerBorrower;
(iix) Any financial statements of any Loan Party or Affiliate thereof which are consolidated to include the Borrower will contain detailed notes clearly stating that (A) all of the Borrower’s assets are owned by the Borrower, and (B) the Borrower is a separate legal entity with its own separate creditors that will be entitled to be satisfied out of the Borrower’s assets prior to any value in the Borrower becoming available to the Borrower’s equity holders; and the accounting records and any the published financial statements of each of the Originators will clearly show that, for accounting purposes, the Receivables and the Related Assets Security have been sold by such Originator to the Borrower;
(jx) The Borrower’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Servicer and the other Affiliates;
(kxi) Each Affiliate of the Borrower will strictly observe organizational formalities in its dealings with the Borrower, and, except as permitted pursuant to this Agreement with respect to Collections, funds or other assets of the Borrower will not be commingled with those of any of its Affiliates;
(lxii) No Affiliate of the Borrower will maintain joint bank accounts with the Borrower or other depository accounts with the Borrower to which any such Affiliate (other than in the Borrower’s or such Affiliate’s existing or future capacity as the Servicer hereunder or under the Receivables Sale Agreement) has independent access, provided that prior to demand by any of the Agents pursuant to Section 7.1(i) to establish a segregated Collateral Account, Collections may be deposited into general accounts of Quest Diagnostics, subject to the obligations of the Servicer hereunder;
(mxiii) Each Affiliate of the Borrower will maintain arm’s length relationships with the Borrower, and each Affiliate of the Borrower that renders or otherwise furnishes services or merchandise to the Borrower will be compensated by the Borrower at market rates for such services or merchandise;
(nxiv) No Affiliate of the Borrower will be, nor will it hold itself out to be, responsible for the debts of the Borrower or the decisions or actions in respect of the daily business and affairs of the Borrower. Quest Diagnostics BSX and the Borrower will immediately correct any known misrepresentation with respect to the foregoing and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity;; Second Amended and Restated Credit and Security Agreement
(oxv) The Borrower will keep correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholder and board of directors, as applicable, member(s) and the resolutions, agreements and other instruments of the Borrower will be continuously maintained as official records by the Borrower; and
(pxvi) The Borrower will conduct its business solely in its own legal name and in a manner separate from the Originators so as not to mislead others with whom they are dealing.
Appears in 1 contract
Samples: Credit and Security Agreement (Boston Scientific Corp)
Separate Existence of the Borrower. Each Loan Party hereby acknowledges that Lenders and the Agents are entering into the transactions contemplated hereby in reliance upon the Borrower’s 's identity as a legal entity separate from the Servicer and its other Affiliates. Therefore, each Loan Party shall take all steps specifically required by this Agreement or reasonably required by any of the Agents to continue the Borrower’s 's identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of its Affiliates, and is not a division of Quest Diagnostics or any other Person. Without limiting the foregoing, each Loan Party will take such actions as shall be required in order that:
(a) The Borrower will be a limited purpose corporation whose primary activities are restricted in its Certificate of Incorporation to purchasing or otherwise acquiring from the Originators and owning, holding, granting security interests in the Collateral, entering into agreements for the financing and servicing of the Receivables, and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(b) Not less than one member of the Borrower’s 's Board of Directors (the “"Independent Director”") shall be an individual who is not, and never has been, a direct, indirect or beneficial stockholder, officer, director, employee, affiliate, associate, material supplier or material customer of Quest Diagnostics or any of its Affiliates (other than an Affiliate organized with a limited purpose charter for the purpose of acquiring receivables or other financial assets or intangible property). The certificate of incorporation of the Borrower shall provide that (i) at least one member of the Borrower’s 's Board of Directors shall be an Independent Director, (ii) the Borrower’s 's Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Independent Director shall approve the taking of such action in writing prior to the taking of such action and (iii) the provisions requiring an independent director and the provision described in clauses (i) and (ii) of this paragraph (b) cannot be amended without the prior written consent of the Independent Director;
(c) The Independent Director shall not at any time serve as a trustee in bankruptcy for the Borrower or any Affiliate thereof;
(d) Any director, employee, consultant or agent of the Borrower will be compensated from the Borrower’s 's funds for services provided to the Borrower. The Borrower will not engage any agents (other than its attorneys, auditors and other professionals) and will not engage any Person other than the Servicer to deal with the Collateral as contemplated by the Transaction Documents;
(e) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Collateral. The Borrower will pay the Servicer the Servicer’s 's Fee pursuant hereto. The Borrower will not incur any material indirect or overhead expenses for items shared with Quest Diagnostics (or any other Affiliate thereof) which are not reflected in the Servicer’s 's Fee. To the extent, if any, that the Borrower (or any other Affiliate thereof) shares items of expenses not reflected in the Servicer’s 's Fee, for legal, auditing and other professional services and directors’ ' fees, 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 Quest Diagnostics shall pay all expenses of the Borrower and, to the extent provided in this Agreement, the Agents relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal, rating agency and other fees;
(f) The Borrower’s 's operating expenses will not be paid by any other Loan Party or other Affiliate of the Borrower;
(g) The Borrower will have its own stationery;
(h) The books of account, financial reports and records of the Borrower will be maintained separately from those of Quest Diagnostics and each other Affiliate of the Borrower although they may appear in Quest Diagnostics’ ' consolidated general ledger;
(i) Any financial statements of any Loan Party or Affiliate thereof which are consolidated to include the Borrower will contain detailed notes clearly stating that (A) all of the Borrower’s 's assets are owned by the Borrower, and (B) the Borrower is a separate legal entity with its own separate creditors that will be entitled to be satisfied out of the Borrower’s 's assets prior to any value in the Borrower becoming available to the Borrower’s 's equity holders; and the accounting records and any published financial statements of each of the Originators will clearly show that, for accounting purposes, the Receivables and Related Assets have been sold by such Originator to the Borrower;
(j) The Borrower’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of the Servicer and the other Affiliates;
(k) Each Affiliate of the Borrower will strictly observe organizational formalities in its dealings with the Borrower, and, except as permitted pursuant to this Agreement with respect to Collections, funds or other assets of the Borrower will not be commingled with those of any of its Affiliates;
(l) No Affiliate of the Borrower will maintain joint bank accounts with the Borrower or other depository accounts with the Borrower to which any such Affiliate (other than in the Borrower’s 's or such Affiliate’s 's existing or future capacity as the Servicer hereunder or under the Sale Agreement) has independent access, provided that prior to demand by any of the Agents pursuant to Section 7.1(i) to establish a segregated Collateral Account, Collections may be deposited into general accounts of Quest Diagnostics, subject to the obligations of the Servicer hereunder;
(m) Each Affiliate of the Borrower will maintain arm’s 's length relationships with the Borrower, and each Affiliate of the Borrower that renders or otherwise furnishes services or merchandise to the Borrower will be compensated by the Borrower at market rates for such services or merchandise;
(n) No Affiliate of the Borrower will be, nor will it hold itself out to be, responsible for the debts of the Borrower or the decisions or actions in respect of the daily business and affairs of the Borrower. Quest Diagnostics and the Borrower will immediately correct any known misrepresentation with respect to the foregoing and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity;
(o) The Borrower will keep correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholder and board of directors, as applicable, and the resolutions, agreements and other instruments of the Borrower will be continuously maintained as official records by the Borrower; and
(p) The Borrower will conduct its business solely in its own legal name and in a manner separate from the Originators so as not to mislead others with whom they are dealing.
Appears in 1 contract
Samples: Credit and Security Agreement (Quest Diagnostics Inc)
Separate Existence of the Borrower. Each Loan Party hereby acknowledges that Lenders and the Agents Administrative Agent are entering into the transactions contemplated hereby in reliance upon the Borrower’s 's identity as a legal entity separate from the Servicer and its other Affiliates. Therefore, each Loan Party shall take all steps specifically required by this Agreement or reasonably required by any of the Agents Administrative Agent to continue the Borrower’s 's identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of its Affiliates, and is not a division of Quest Diagnostics or any other Person. Without limiting the foregoing, each Loan Party will take such actions as shall be required in order that:
(a) The Borrower will be a limited purpose corporation whose primary activities are restricted in its Certificate of Incorporation to purchasing or otherwise acquiring from any of the Originators and Originators, owning, holding, granting security interests in the Collateral, entering into agreements for the financing and servicing of the Receivables, and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(b) Not less than one member of the Borrower’s 's Board of Directors (the “Independent Director”"INDEPENDENT DIRECTOR") shall be an individual who is not, and never has been, a direct, indirect or beneficial stockholder, officer, director, employee, affiliate, associate, material supplier or material customer of Quest Diagnostics or any of its Affiliates (other than an Affiliate organized with a limited purpose charter for the purpose of acquiring receivables or other financial assets or intangible property). The certificate of incorporation of the Borrower shall provide that (i) at least one member of the Borrower’s 's Board of Directors shall be an Independent Director, (ii) the Borrower’s 's Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Independent Director shall approve the taking of such action in writing prior to the taking of such action and (iii) the provisions requiring an independent director and the provision described in clauses (i) and (ii) of this paragraph (b) cannot be amended without the prior written consent of the Independent Director;
(c) The Independent Director shall not at any time serve as a trustee in bankruptcy for the Borrower or any Affiliate thereof;
(d) Any director, employee, consultant or agent of the Borrower will be compensated from the Borrower’s 's funds for services provided to the Borrower. The Borrower will not engage any agents (other than its attorneys, auditors and other professionals) professionals and will not engage a servicer and any Person other than the Servicer to deal with the Collateral as agent contemplated by the Transaction DocumentsDocuments for the Collateral, which servicer will be fully compensated for its services by payment of the Servicer's Fee, and certain organizational expenses in connection with the formation of the Borrower;
(e) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Collateral. The Borrower will pay the Servicer the Servicer’s 's Fee pursuant hereto. The Borrower will not incur any material indirect or overhead expenses for items shared with Quest Diagnostics (or any other Affiliate thereof) which are not reflected in the Servicer’s 's Fee. To the extent, if any, that the Borrower (or any other Affiliate thereof) shares items of expenses not reflected in the Servicer’s 's Fee, for legal, auditing and other professional services and directors’ ' fees, 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 Quest Diagnostics shall pay all expenses of the Borrower and, to the extent provided in this Agreement, the Agents relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal, rating agency and other fees;
(f) The Borrower’s 's operating expenses will not be paid by any other Loan Party or other Affiliate of the Borrower;
(g) The Borrower will have its own stationery;
(h) The books of account, financial reports and records of the Borrower will be maintained separately from those of Quest Diagnostics and each other Affiliate of the Borrower although they may appear in Quest Diagnostics’ consolidated general ledgerBorrower;
(i) Any financial statements of any Loan Party or Affiliate thereof which are consolidated to include the Borrower will contain detailed notes clearly stating that (A) all of the Borrower’s 's assets are owned by the Borrower, and (B) the Borrower is a separate legal entity with its own separate creditors that will be entitled to be satisfied out of the Borrower’s 's assets prior to any value in the Borrower becoming available to the Borrower’s 's equity holders; and the accounting records and any the published financial statements of each of the Originators will clearly show that, for accounting purposes, the Receivables and Related Assets have been sold by such Originator to the Borrower;
(j) The Borrower’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of the Servicer and the other Affiliates;
(k) Each Affiliate of the Borrower will strictly observe organizational formalities in its dealings with the Borrower, and, except as permitted pursuant to this Agreement with respect to Collections, funds or other assets of the Borrower will not be commingled with those of any of its Affiliates;
(l) No Affiliate of the Borrower will maintain joint bank accounts with the Borrower or other depository accounts with the Borrower to which any such Affiliate (other than in the Borrower’s 's or such Affiliate’s 's existing or future capacity as the Servicer hereunder or under the Sale Agreement) has independent access, provided that prior to demand by any of the Agents Administrative Agent pursuant to Section 7.1(i) to establish a segregated Collateral Account, Collections may be deposited into general accounts of Quest Diagnostics, subject to the obligations of the Servicer hereunder;
(m) Each Affiliate of the Borrower will maintain arm’s 's length relationships with the Borrower, and each Affiliate of the Borrower that renders or otherwise furnishes services or merchandise to the Borrower will be compensated by the Borrower at market rates for such services or merchandise;
(n) No Affiliate of the Borrower will be, nor will it hold itself out to be, responsible for the debts of the Borrower or the decisions or actions in respect of the daily business and affairs of the Borrower. Quest Diagnostics and the Borrower will immediately correct any known misrepresentation with respect to the foregoing and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity;
(o) The Borrower will keep correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholder and board of directors, as applicable, and the resolutions, agreements and other instruments of the Borrower will be continuously maintained as official records by the Borrower; and
(p) The Borrower will conduct its business solely in its own legal name and in a manner separate from the Originators so as not to mislead others with whom they are dealing.
Appears in 1 contract
Samples: Credit and Security Agreement (Quest Diagnostics Inc)
Separate Existence of the Borrower. Each Loan Party hereby acknowledges that Lenders and the Agents are entering into the transactions contemplated hereby in reliance upon the Borrower’s 's identity as a legal entity separate from the Servicer and its other Affiliates. Therefore, each Loan Party shall take all steps specifically required by this Agreement or reasonably required by any of the Agents to continue the Borrower’s 's identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of its Affiliates, and is not a division of Quest Diagnostics or any other Person. Without limiting the foregoing, each Loan Party will take such actions as shall be required in order that:
(a) The Borrower will be a limited purpose corporation whose primary activities are restricted in its Certificate of Incorporation to purchasing or otherwise acquiring from any of the Originators and Originators, owning, holding, granting security interests in the Collateral, entering into agreements for the financing and servicing of the Receivables, and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(b) Not less than one member of the Borrower’s 's Board of Directors (the “"Independent Director”") shall be an individual who is not, and never has been, a direct, indirect or beneficial stockholder, officer, director, employee, affiliate, associate, material supplier or material customer of Quest Diagnostics or any of its Affiliates (other than an Affiliate organized with a limited purpose charter for the purpose of acquiring receivables or other financial assets or intangible property). The certificate of incorporation of the Borrower shall provide that (i) at least one member of the Borrower’s 's Board of Directors shall be an Independent Director, (ii) the Borrower’s 's Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Independent Director shall approve the taking of such action in writing prior to the taking of such action and (iii) the provisions requiring an independent director and the provision described in clauses (i) and (ii) of this paragraph (b) cannot be amended without the prior written consent of the Independent Director;
(c) The Independent Director shall not at any time serve as a trustee in bankruptcy for the Borrower or any Affiliate thereof;
(d) Any director, employee, consultant or agent of the Borrower will be compensated from the Borrower’s 's funds for services provided to the Borrower. The Borrower will not engage any agents (other than its attorneys, auditors and other professionals) professionals and will not engage a servicer and any Person other than the Servicer to deal with the Collateral as agent contemplated by the Transaction DocumentsDocuments for the Collateral, which servicer will be fully compensated for its services by payment of the Servicer's Fee, and certain organizational expenses in connection with the formation of the Borrower;
(e) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Collateral. The Borrower will pay the Servicer the Servicer’s 's Fee pursuant hereto. The Borrower will not incur any material indirect or overhead expenses for items shared with Quest Diagnostics (or any other Affiliate thereof) which are not reflected in the Servicer’s 's Fee. To the extent, if any, that the Borrower (or any other Affiliate thereof) shares items of expenses not reflected in the Servicer’s 's Fee, for legal, auditing and other professional services and directors’ ' fees, 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 Quest Diagnostics shall pay all expenses of the Borrower and, to the extent provided in this Agreement, the Agents relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal, rating agency and other fees;
(f) The Borrower’s 's operating expenses will not be paid by any other Loan Party or other Affiliate of the Borrower;
(g) The Borrower will have its own stationery;
(h) The books of account, financial reports and records of the Borrower will be maintained separately from those of Quest Diagnostics and each other Affiliate of the Borrower although they may appear in Quest Diagnostics’ consolidated general ledgerBorrower;
(i) Any financial statements of any Loan Party or Affiliate thereof which are consolidated to include the Borrower will contain detailed notes clearly stating that (A) all of the Borrower’s 's assets are owned by the Borrower, and (B) the Borrower is a separate legal entity with its own separate creditors that will be entitled to be satisfied out of the Borrower’s 's assets prior to any value in the Borrower becoming available to the Borrower’s 's equity holders; and the accounting records and any the published financial statements of each of the Originators will clearly show that, for accounting purposes, the Receivables and Related Assets have been sold by such Originator to the Borrower;
(j) The Borrower’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of the Servicer and the other Affiliates;
(k) Each Affiliate of the Borrower will strictly observe organizational formalities in its dealings with the Borrower, and, except as permitted pursuant to this Agreement with respect to Collections, funds or other assets of the Borrower will not be commingled with those of any of its Affiliates;
(l) No Affiliate of the Borrower will maintain joint bank accounts with the Borrower or other depository accounts with the Borrower to which any such Affiliate (other than in the Borrower’s 's or such Affiliate’s 's existing or future capacity as the Servicer hereunder or under the Sale Agreement) has independent access, provided that prior to demand by any of the Agents pursuant to Section 7.1(i) to establish a segregated Collateral Account, Collections may be deposited into general accounts of Quest Diagnostics, subject to the obligations of the Servicer hereunder;
(m) Each Affiliate of the Borrower will maintain arm’s 's length relationships with the Borrower, and each Affiliate of the Borrower that renders or otherwise furnishes services or merchandise to the Borrower will be compensated by the Borrower at market rates for such services or merchandise;
(n) No Affiliate of the Borrower will be, nor will it hold itself out to be, responsible for the debts of the Borrower or the decisions or actions in respect of the daily business and affairs of the Borrower. Quest Diagnostics and the Borrower will immediately correct any known misrepresentation with respect to the foregoing and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity;
(o) The Borrower will keep correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholder and board of directors, as applicable, and the resolutions, agreements and other instruments of the Borrower will be continuously maintained as official records by the Borrower; and
(p) The Borrower will conduct its business solely in its own legal name and in a manner separate from the Originators so as not to mislead others with whom they are dealing.
Appears in 1 contract
Samples: Credit and Security Agreement (Quest Diagnostics Inc)
Separate Existence of the Borrower. Each Loan Party hereby acknowledges that Lenders and the Agents are entering into the transactions contemplated hereby in reliance upon the Borrower’s 's identity as a legal entity separate from the Servicer and its other Affiliates. Therefore, each Loan Party shall take all steps specifically required by this Agreement or reasonably required by any of the Agents to continue the Borrower’s 's identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of its Affiliates, and is not a division of Quest Diagnostics or any other Person. Without limiting the foregoing, each Loan Party will take such actions as shall be required in order that:
(a) The Borrower will be a limited purpose corporation whose primary activities are restricted in its Certificate of Incorporation to purchasing or otherwise acquiring from any of the Originators and Originators, owning, holding, granting security interests in the Collateral, entering into agreements for the financing and servicing of the Receivables, and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(b) Not less than one member of the Borrower’s 's Board of Directors (the “Independent Director”"INDEPENDENT DIRECTOR") shall be an individual who is not, and never has been, a direct, indirect or beneficial stockholder, officer, director, employee, affiliate, associate, material supplier or material customer of Quest Diagnostics or any of its Affiliates (other than an Affiliate organized with a limited purpose charter for the purpose of acquiring receivables or other financial assets or intangible property). The certificate of incorporation of the Borrower shall provide that (i) at least one member of the Borrower’s 's Board of Directors shall be an Independent Director, (ii) the Borrower’s 's Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Independent Director shall approve the taking of such action in writing prior to the taking of such action and (iii) the provisions requiring an independent director and the provision described in clauses (i) and (ii) of this paragraph (b) cannot be amended without the prior written consent of the Independent Director;
(c) The Independent Director shall not at any time serve as a trustee in bankruptcy for the Borrower or any Affiliate thereof;
(d) Any director, employee, consultant or agent of the Borrower will be compensated from the Borrower’s 's funds for services provided to the Borrower. The Borrower will not engage any agents (other than its attorneys, auditors and other professionals) professionals and will not engage a servicer and any Person other than the Servicer to deal with the Collateral as agent contemplated by the Transaction DocumentsDocuments for the Collateral, which servicer will be fully compensated for its services by payment of the Servicer's Fee, and certain organizational expenses in connection with the formation of the Borrower;
(e) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Collateral. The Borrower will pay the Servicer the Servicer’s 's Fee pursuant hereto. The Borrower will not incur any material indirect or overhead expenses for items shared with Quest Diagnostics (or any other Affiliate thereof) which are not reflected in the Servicer’s 's Fee. To the extent, if any, that the Borrower (or any other Affiliate thereof) shares items of expenses not reflected in the Servicer’s 's Fee, for legal, auditing and other professional services and directors’ ' fees, 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 Quest Diagnostics shall pay all expenses of the Borrower and, to the extent provided in this Agreement, the Agents relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal, rating agency and other fees;
(f) The Borrower’s 's operating expenses will not be paid by any other Loan Party or other Affiliate of the Borrower;
(g) The Borrower will have its own stationery;
(h) The books of account, financial reports and records of the Borrower will be maintained separately from those of Quest Diagnostics and each other Affiliate of the Borrower although they may appear in Quest Diagnostics’ consolidated general ledgerBorrower;
(i) Any financial statements of any Loan Party or Affiliate thereof which are consolidated to include the Borrower will contain detailed notes clearly stating that (A) all of the Borrower’s 's assets are owned by the Borrower, and (B) the Borrower is a separate legal entity with its own separate creditors that will be entitled to be satisfied out of the Borrower’s 's assets prior to any value in the Borrower becoming available to the Borrower’s 's equity holders; and the accounting records and any the published financial statements of each of the Originators will clearly show that, for accounting purposes, the Receivables and Related Assets have been sold by such Originator to the Borrower;
(j) The Borrower’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of the Servicer and the other Affiliates;
(k) Each Affiliate of the Borrower will strictly observe organizational formalities in its dealings with the Borrower, and, except as permitted pursuant to this Agreement with respect to Collections, funds or other assets of the Borrower will not be commingled with those of any of its Affiliates;
(l) No Affiliate of the Borrower will maintain joint bank accounts with the Borrower or other depository accounts with the Borrower to which any such Affiliate (other than in the Borrower’s 's or such Affiliate’s 's existing or future capacity as the Servicer hereunder or under the Sale Agreement) has independent access, provided that PROVIDED THAT prior to demand by any of the Agents pursuant to Section 7.1(i) to establish a segregated Collateral Account, Collections may be deposited into general accounts of Quest Diagnostics, subject to the obligations of the Servicer hereunder;
(m) Each Affiliate of the Borrower will maintain arm’s 's length relationships with the Borrower, and each Affiliate of the Borrower that renders or otherwise furnishes services or merchandise to the Borrower will be compensated by the Borrower at market rates for such services or merchandise;
(n) No Affiliate of the Borrower will be, nor will it hold itself out to be, responsible for the debts of the Borrower or the decisions or actions in respect of the daily business and affairs of the Borrower. Quest Diagnostics and the Borrower will immediately correct any known misrepresentation with respect to the foregoing and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity;
(o) The Borrower will keep correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholder and board of directors, as applicable, and the resolutions, agreements and other instruments of the Borrower will be continuously maintained as official records by the Borrower; and
(p) The Borrower will conduct its business solely in its own legal name and in a manner separate from the Originators so as not to mislead others with whom they are dealing.
Appears in 1 contract
Samples: Credit and Security Agreement (Quest Diagnostics Inc)
Separate Existence of the Borrower. Each Loan Party hereby acknowledges that Lenders and the Agents are entering into the transactions contemplated hereby in reliance upon the Borrower’s identity as a legal entity separate from the Servicer and its other Affiliates. Therefore, each Loan Party shall take all steps specifically required by this Agreement or reasonably required by any of the Agents to continue the Borrower’s identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of its Affiliates, and is not a division of Quest Diagnostics or any other Person. Without limiting the foregoing, each Loan Party will take such actions as shall be required in order that:
(a) The Borrower will be a limited purpose corporation whose primary activities are restricted in its Certificate of Incorporation to purchasing or otherwise acquiring from the Originators and owning, holding, granting security interests in the Collateral, entering into agreements for the financing and servicing of the Receivables, and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(b) Not less than one member of the Borrower’s Board of Directors (the “Independent Director”) shall be an individual who is not, and never has been, a direct, indirect or beneficial stockholder, officer, director, employee, affiliate, associate, material supplier or material customer of Quest Diagnostics or any of its Affiliates (other than an Affiliate organized with a limited purpose charter for the purpose of acquiring receivables or other financial assets or intangible property). The certificate of incorporation of the Borrower shall provide that (i) at least one member of the Borrower’s Board of Directors shall be an Independent Director, (ii) the Borrower’s Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Independent Director shall approve the taking of such action in writing prior to the taking of such action and (iii) the provisions requiring an independent director and the provision described in clauses (i) and (ii) of this paragraph (b) cannot be amended without the prior written consent of the Independent Director;
(c) The Independent Director shall not at any time serve as a trustee in bankruptcy for the Borrower or any Affiliate thereof;
(d) Any director, employee, consultant or agent of the Borrower will be compensated from the Borrower’s funds for services provided to the Borrower. The Borrower will not engage any agents (other than its attorneys, auditors and other professionals) and will not engage any Person other than the Servicer to deal with the Collateral as contemplated by the Transaction Documents;
(e) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Collateral. The Borrower will pay the Servicer the Servicer’s Fee pursuant hereto. The Borrower will not incur any material indirect or overhead expenses for items shared with Quest Diagnostics (or any other Affiliate thereof) which are not reflected in the Servicer’s Fee. To the extent, if any, that the Borrower (or any other Affiliate thereof) shares items of expenses not reflected in the Servicer’s Fee, for legal, auditing and other professional services and directors’ fees, 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 Quest Diagnostics shall pay all expenses of the Borrower and, to the extent provided in this Agreement, the Agents relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal, rating agency and other fees;
(f) The Borrower’s operating expenses will not be paid by any other Loan Party or other Affiliate of the Borrower;
(g) The Borrower will have its own stationery;
(h) The books of account, financial reports and records of the Borrower will be maintained separately from those of Quest Diagnostics and each other Affiliate of the Borrower although they may appear in Quest Diagnostics’ consolidated general ledger;
(i) Any financial statements of any Loan Party or Affiliate thereof which are consolidated to include the Borrower will contain detailed notes clearly stating that (A) all of the Borrower’s assets are owned by the Borrower, and (B) the Borrower is a separate legal entity with its own separate creditors that will be entitled to be satisfied out of the Borrower’s assets prior to any value in the Borrower becoming available to the Borrower’s equity holders; and the accounting records and any published financial statements of each of the Originators will clearly show that, for accounting purposes, the Receivables Purchased Assets and Related Assets have been sold by such Originator to the Borrower;
(j) The Borrower’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Servicer and the other Affiliates;
(k) Each Affiliate of the Borrower will strictly observe organizational formalities in its dealings with the Borrower, and, except as permitted pursuant to this Agreement with respect to Collections, funds or other assets of the Borrower will not be commingled with those of any of its Affiliates;
(l) No Affiliate of the Borrower will maintain joint bank accounts with the Borrower or other depository accounts with the Borrower to which any such Affiliate (other than in the Borrower’s or such Affiliate’s existing or future capacity as the Servicer hereunder or under the Sale Agreement) has independent access, provided that prior to demand by any of the Agents pursuant to Section 7.1(i) to establish a segregated Collateral Account, Collections may be deposited into general accounts of Quest Diagnostics, subject to the obligations of the Servicer hereunder;
(m) Each Affiliate of the Borrower will maintain arm’s length relationships with the Borrower, and each Affiliate of the Borrower that renders or otherwise furnishes services or merchandise to the Borrower will be compensated by the Borrower at market rates for such services or merchandise;
(n) No Affiliate of the Borrower will be, nor will it hold itself out to be, responsible for the debts of the Borrower or the decisions or actions in respect of the daily business and affairs of the Borrower. Quest Diagnostics and the Borrower will immediately correct any known misrepresentation with respect to the foregoing and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entityent ity;
(o) The Borrower will keep correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholder and board of directors, as applicable, and the resolutions, agreements and other instruments of the Borrower will be continuously maintained as official records by the Borrower; and
(p) The Borrower will conduct its business solely in its own legal name and in a manner separate from the Originators so as not to mislead others with whom they are dealing.
Appears in 1 contract
Samples: Credit and Security Agreement (Quest Diagnostics Inc)
Separate Existence of the Borrower. Each Loan Party of the Borrower and the Servicer hereby acknowledges that Lenders the Secured Parties, the Group Agents and the Agents Administrative Agent are entering into the transactions contemplated hereby by this Agreement and the other Transaction Documents in reliance upon the Borrower’s identity as a legal entity separate from any Originator, the Servicer and its other their Affiliates. Therefore, each Loan Party of the Borrower and Servicer shall take all steps specifically required by this Agreement or reasonably required by the Administrative Agent or any of the Agents Group Agent to continue the Borrower’s identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of its Affiliatesthe Originators, the Servicer and any other Person, and is not a division of Quest Diagnostics the Originators, the Servicer, its Affiliates or any other Person. Without limiting the foregoinggenerality of the foregoing and in addition to and consistent with the other covenants set forth herein and in the other Transaction Documents, each Loan Party will of the Borrower and the Servicer shall (i) comply with all applicable provisions set forth in Section 9(j) of the Borrower’s Limited Liability Company Agreement (as amended solely in accordance with this Agreement), (ii) not take any action inconsistent with the foregoing or contrary to the related matters set forth or assumed in the opinions of counsel relating to true sale and substantive non-consolidation matters and (iii) take such actions as shall be required in order that:
(a) The Borrower will be a limited purpose corporation whose primary activities are restricted in its Certificate of Incorporation to purchasing or otherwise acquiring from the Originators and owning, holding, granting security interests in the Collateral, entering into agreements for the financing and servicing of the Receivables, and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(b) Not less fewer than one member of the Borrower’s Board board of Directors (managers shall at all times meet the criteria set forth in the definition of “Independent DirectorManager”.
(b) The Borrower and the Servicer shall (A) give written notice to the Administrative Agent of the election or appointment, or proposed election or appointment, of a new Independent Manager of the Borrower, which notice shall be given not later than ten (10) Business Days prior to the date such appointment or election would be effective (except when such election or appointment is necessary to fill a vacancy caused by the death, disability, or incapacity of the existing Independent Manager, or the failure of such Independent Manager to satisfy the criteria for an individual who is notIndependent Manager set forth in the definition thereof, and never has been, a direct, indirect or beneficial stockholder, officer, director, employee, affiliate, associate, material supplier or material customer of Quest Diagnostics or any of its Affiliates (other than an Affiliate organized with a limited purpose charter for the purpose of acquiring receivables or other financial assets or intangible property). The certificate of incorporation of in which case the Borrower shall provide written notice of such election or appointment within one (1) Business Day) and (B) with any such written notice, certify to the Administrative Agent that the Independent Manager satisfies the criteria for an Independent Manager set forth in the definition thereof.
(ic) at least one member of the The Borrower’s Board of Directors Limited Liability Company Agreement shall be an Independent Director, include provisions to the effect that: (iiA) the Borrower’s Board board of Directors managers shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Independent Director Manager shall approve the taking of such action in writing prior to before the taking of such action and (iiiB) the provisions such provision and each other provision requiring an independent director and the provision described in clauses (i) and (ii) of this paragraph (b) Independent Manager cannot be amended without the prior written consent of the Independent Director;Manager.
(cd) The Borrower’s Independent Director Manager shall not at any time serve as a trustee in bankruptcy for the Borrower Borrower, any Originator, the Servicer or any Affiliate thereof;
(d) Any director, employee, consultant or agent of the Borrower will be compensated from the Borrower’s funds for services provided to the Borrower. The Borrower will not engage any agents (other than its attorneys, auditors and other professionals) and will not engage any Person other than the Servicer to deal with the Collateral as contemplated by the Transaction Documents;
(e) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Collateral. The Borrower will pay the Servicer the Servicer’s Fee pursuant hereto. The Borrower will not incur any material indirect or overhead expenses for items shared with Quest Diagnostics (or any other Affiliate thereof) which are not reflected in the Servicer’s Fee. To the extent, if any, that the Borrower (or any other Affiliate thereof) shares items of expenses not reflected in the Servicer’s Fee, for legal, auditing and other professional services and directors’ fees, 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 Quest Diagnostics shall pay all expenses of the Borrower and, to the extent provided in this Agreement, the Agents relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal, rating agency and other fees;
(f) The Borrower’s operating expenses will not be paid by any other Loan Party or other Affiliate of the Borrower;
(g) The Borrower will have its own stationery;
(h) The books of account, financial reports and records of the Borrower will be maintained separately from those of Quest Diagnostics and each other Affiliate of the Borrower although they may appear in Quest Diagnostics’ consolidated general ledger;
(i) Any financial statements of any Loan Party or Affiliate thereof which are consolidated to include the Borrower will contain detailed notes clearly stating that (A) all of the Borrower’s assets are owned by the Borrower, and (B) the Borrower is a separate legal entity with its own separate creditors that will be entitled to be satisfied out of the Borrower’s assets prior to any value in the Borrower becoming available to the Borrower’s equity holders; and the accounting records and any published financial statements of each of the Originators will clearly show that, for accounting purposes, the Receivables and Related Assets have been sold by such Originator to the Borrower;
(j) The Borrower’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Servicer and the other respective Affiliates;
(k) Each Affiliate of the Borrower will strictly observe organizational formalities in its dealings with the Borrower, and, except as permitted pursuant to this Agreement with respect to Collections, funds or other assets of the Borrower will not be commingled with those of any of its Affiliates;
(l) No Affiliate of the Borrower will maintain joint bank accounts with the Borrower or other depository accounts with the Borrower to which any such Affiliate (other than in the Borrower’s or such Affiliate’s existing or future capacity as the Servicer hereunder or under the Sale Agreement) has independent access, provided that prior to demand by any of the Agents pursuant to Section 7.1(i) to establish a segregated Collateral Account, Collections may be deposited into general accounts of Quest Diagnostics, subject to the obligations of the Servicer hereunder;
(m) Each Affiliate of the Borrower will maintain arm’s length relationships with the Borrower, and each Affiliate of the Borrower that renders or otherwise furnishes services or merchandise to the Borrower will be compensated by the Borrower at market rates for such services or merchandise;
(n) No Affiliate of the Borrower will be, nor will it hold itself out to be, responsible for the debts of the Borrower or the decisions or actions in respect of the daily business and affairs of the Borrower. Quest Diagnostics and the Borrower will immediately correct any known misrepresentation with respect to the foregoing and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity;
(o) The Borrower will keep correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholder and board of directors, as applicable, and the resolutions, agreements and other instruments of the Borrower will be continuously maintained as official records by the Borrower; and
(p) The Borrower will conduct its business solely in its own legal name and in a manner separate from the Originators so as not to mislead others with whom they are dealing.
Appears in 1 contract
Separate Existence of the Borrower. Each Loan Party hereby acknowledges that Lenders and the Agents are entering into the transactions contemplated hereby in reliance upon the Borrower’s 's identity as a legal entity separate from the Servicer and its other Affiliates. Therefore, each Loan Party shall take all steps specifically required by this Agreement or reasonably required by any of the Agents to continue the Borrower’s 's identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of its Affiliates, and is not a division of Quest Diagnostics BSX or any other PersonPerson (including complying with and causing to be true and correct each of the facts and assumptions contained in the legal opinion of Shearman & Sterling). Without limiting the foregoing, each Loan Party will take such actions as shall be required in order that:
(ai) The Borrower will be a limited purpose corporation limited liability company whose primary activities are restricted in its Certificate of Incorporation limited liability company agreement to purchasing or otherwise acquiring from any of the Originators and Originators, owning, holding, granting security interests in the Collateral, entering into agreements for the financing and servicing of the Receivables, and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(bii) Not less than one member of the The Borrower’s Board of Directors 's independent manager (the “"Independent Director”Manager") shall be an individual who is not, and never has been, a direct, indirect or beneficial stockholder, member, officer, director, employee, affiliate, associate, material supplier or material customer of Quest Diagnostics BSX or any of its Affiliates (other than an Affiliate organized with a limited purpose charter for the purpose of acquiring receivables or other financial assets or intangible property). The certificate of incorporation limited liability company agreement of the Borrower shall provide that (iA) so long as any Obligations are outstanding, the Borrower at all times shall have at least one member of the Borrower’s Board of Directors shall be an Independent DirectorManager, (iiB) the Borrower’s Board of Directors 's members shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Independent Director Manager shall approve the taking of such action in writing prior to the taking of such action and (iiiC) the provisions requiring an independent director member and the provision provisions described in clauses (iA) and (iiB) of this paragraph (bii) cannot be amended without the prior written consent of the Independent DirectorManager;
(ciii) The Independent Director Manager shall not at any time serve as a trustee in bankruptcy for the Borrower or any Affiliate thereof;
(div) Any director, manager, employee, consultant or agent of the Borrower will be compensated from the Borrower’s 's funds for services provided to the Borrower. The Borrower will not engage any agents (other than its attorneys, auditors and other professionals) professionals and will not engage a servicer and any Person other than the Servicer to deal with the Collateral as agent contemplated by the Transaction DocumentsDocuments for the Collateral, which servicer will be fully compensated for its services by payment of the Servicing Fee, and certain organizational expenses in connection with the formation of the Borrower;
(ev) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Collateral. The Borrower will pay the Servicer the Servicer’s Servicing Fee pursuant hereto. The Borrower will not incur any material indirect or overhead expenses for items shared with Quest Diagnostics BSX (or any other Affiliate thereof) which are not reflected in the Servicer’s Servicing Fee. To the extent, if any, that the Borrower (or any other Affiliate thereof) shares items of expenses not reflected in the Servicer’s Servicing Fee, for legal, auditing and other professional services and directors’ ' fees, 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 Quest Diagnostics BSX shall pay all expenses of the Borrower and, to the extent provided in this Agreement, the Agents relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal, rating agency and other fees;
(fvi) The Borrower’s 's operating expenses will not be paid by any other Loan Party or other Affiliate of the Borrower;
(gvii) The Borrower will have its own stationery;
(hviii) The books of account, financial reports and records of the Borrower will be maintained separately from those of Quest Diagnostics BSX and each other Affiliate of the Borrower although they may appear in Quest Diagnostics’ consolidated general ledgerBorrower;
(iix) Any financial statements of any Loan Party or Affiliate thereof which are consolidated to include the Borrower will contain detailed notes clearly stating that (A) all of the Borrower’s 's assets are owned by the Borrower, and (B) the Borrower is a separate legal entity with its own separate creditors that will be entitled to be satisfied out of the Borrower’s 's assets prior to any value in the Borrower becoming available to the Borrower’s 's equity holders; and the accounting records and any the published financial statements of each of the Originators will clearly show that, for accounting purposes, the Receivables and Related Assets have been sold by such Originator to the Borrower;
(jx) The Borrower’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of the Servicer and the other Affiliates;
(kxi) Each Affiliate of the Borrower will strictly observe organizational formalities in its dealings with the Borrower, and, except as permitted pursuant to this Agreement with respect to Collections, funds or other assets of the Borrower will not be commingled with those of any of its Affiliates;
(lxii) No Affiliate of the Borrower will maintain joint bank accounts with the Borrower or other depository accounts with the Borrower to which any such Affiliate (other than in the Borrower’s 's or such Affiliate’s 's existing or future capacity as the Servicer hereunder or under the Receivables Sale Agreement) has independent access, provided that prior to demand by any of the Agents pursuant to Section 7.1(i) to establish a segregated Collateral Account, Collections may be deposited into general accounts of Quest Diagnostics, subject to the obligations of the Servicer hereunder;
(mxiii) Each Affiliate of the Borrower will maintain arm’s 's length relationships with the Borrower, and each Affiliate of the Borrower that renders or otherwise furnishes services or merchandise to the Borrower will be compensated by the Borrower at market rates for such services or merchandise;
(nxiv) No Affiliate of the Borrower will be, nor will it hold itself out to be, responsible for the debts of the Borrower or the decisions or actions in respect of the daily business and affairs of the Borrower. Quest Diagnostics BSX and the Borrower will immediately correct any known misrepresentation with respect to the foregoing and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity;
(oxv) The Borrower will keep correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholder and board of directors, as applicable, member(s) and the resolutions, agreements and other instruments of the Borrower will be continuously maintained as official records by the Borrower; and
(pxvi) The Borrower will conduct its business solely in its own legal name and in a manner separate from the Originators so as not to mislead others with whom they are dealing.
Appears in 1 contract
Samples: Credit and Security Agreement (Boston Scientific Corp)
Separate Existence of the Borrower. Each Loan Party hereby acknowledges that Lenders and the Agents are entering into the transactions contemplated hereby in reliance upon the Borrower’s 's identity as a legal entity separate from the Servicer and its other Affiliates. Therefore, each Loan Party shall take all steps specifically required by this Agreement or reasonably required by any of the Agents to continue the Borrower’s 's identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of its Affiliates, and is not a division of Quest Diagnostics BSX or any other PersonPerson (including complying with and causing to be true and correct each of the facts and assumptions contained in the legal opinion of Shearman & Sterling). Without limiting the foregoing, each Loan Party will take such actions as shall be required in order that:
(ai) The Borrower will be a limited purpose corporation whose primary activities are restricted in its Certificate of Incorporation to purchasing or otherwise acquiring from any of the Originators and Originators, owning, holding, granting security interests in the Collateral, entering into agreements for the financing and servicing of the Receivables, and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(bii) Not less than one member of the Borrower’s 's Board of Directors (the “"Independent Director”") shall be an individual who is not, and never has been, a direct, indirect or beneficial stockholder, officer, director, employee, affiliate, associate, material supplier or material customer of Quest Diagnostics BSX or any of its Affiliates (other than an Affiliate organized with a limited purpose charter for the purpose of acquiring receivables or other financial assets or intangible property). The certificate of incorporation of the Borrower shall provide that (iA) at least one member of the Borrower’s 's Board of Directors shall be an Independent Director, (iiB) the Borrower’s 's Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Independent Director shall approve the taking of such action in writing prior to the taking of such action and (iiiC) the provisions requiring an independent director and the provision described in clauses (iA) and (iiB) of this paragraph (bii) cannot be amended without the prior written consent of the Independent Director;
(ciii) The Independent Director shall not at any time serve as a trustee in bankruptcy for the Borrower or any Affiliate thereof;
(div) Any director, employee, consultant or agent of the Borrower will be compensated from the Borrower’s 's funds for services provided to the Borrower. The Borrower will not engage any agents (other than its attorneys, auditors and other professionals) professionals and will not engage a servicer and any Person other than the Servicer to deal with the Collateral as agent contemplated by the Transaction DocumentsDocuments for the Collateral, which servicer will be fully compensated for its services by payment of the Servicing Fee, and certain organizational expenses in connection with the formation of the Borrower;
(ev) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Collateral. The Borrower will pay the Servicer the Servicer’s Servicing Fee pursuant hereto. The Borrower will not incur any material indirect or overhead expenses for items shared with Quest Diagnostics BSX (or any other Affiliate thereof) which are not reflected in the Servicer’s Servicing Fee. To the extent, if any, that the Borrower (or any other Affiliate thereof) shares items of expenses not reflected in the Servicer’s Servicing Fee, for legal, auditing and other professional services and directors’ ' fees, 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 Quest Diagnostics BSX shall pay all expenses of the Borrower and, to the extent provided in this Agreement, the Agents relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal, rating agency and other fees;
(fvi) The Borrower’s 's operating expenses will not be paid by any other Loan Party or other Affiliate of the Borrower;
(gvii) The Borrower will have its own stationery;
(hviii) The books of account, financial reports and records of the Borrower will be maintained separately from those of Quest Diagnostics BSX and each other Affiliate of the Borrower although they may appear in Quest Diagnostics’ consolidated general ledgerBorrower;
(iix) Any financial statements of any Loan Party or Affiliate thereof which are consolidated to include the Borrower will contain detailed notes clearly stating that (A) all of the Borrower’s 's assets are owned by the Borrower, and (B) the Borrower is a separate legal entity with its own separate creditors that will be entitled to be satisfied out of the Borrower’s 's assets prior to any value in the Borrower becoming available to the Borrower’s 's equity holders; and the accounting records and any the published financial statements of each of the Originators will clearly show that, for accounting purposes, the Receivables and Related Assets have been sold by such Originator to the Borrower;
(jx) The Borrower’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of the Servicer and the other Affiliates;
(kxi) Each Affiliate of the Borrower will strictly observe organizational formalities in its dealings with the Borrower, and, except as permitted pursuant to this Agreement with respect to Collections, funds or other assets of the Borrower will not be commingled with those of any of its Affiliates;
(lxii) No Affiliate of the Borrower will maintain joint bank accounts with the Borrower or other depository accounts with the Borrower to which any such Affiliate (other than in the Borrower’s 's or such Affiliate’s 's existing or future capacity as the Servicer hereunder or under the Sale Agreement) has independent access, provided that prior to demand by any of the Agents pursuant to Section 7.1(i) to establish a segregated Collateral Account, Collections may be deposited into general accounts of Quest Diagnostics, subject to the obligations of the Servicer hereunder;
(mxiii) Each Affiliate of the Borrower will maintain arm’s 's length relationships with the Borrower, and each Affiliate of the Borrower that renders or otherwise furnishes services or merchandise to the Borrower will be compensated by the Borrower at market rates for such services or merchandise;
(nxiv) No Affiliate of the Borrower will be, nor will it hold itself out to be, responsible for the debts of the Borrower or the decisions or actions in respect of the daily business and affairs of the Borrower. Quest Diagnostics BSX and the Borrower will immediately correct any known misrepresentation with respect to the foregoing and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity;
(oxv) The Borrower will keep correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholder and board of directors, as applicable, and the resolutions, agreements and other instruments of the Borrower will be continuously maintained as official records by the Borrower; and
(pxvi) The Borrower will conduct its business solely in its own legal name and in a manner separate from the Originators so as not to mislead others with whom they are dealing.
Appears in 1 contract
Samples: Credit and Security Agreement (Boston Scientific Corp)
Separate Existence of the Borrower. Each Loan Party hereby acknowledges that Lenders and the Agents are entering into the transactions contemplated hereby in reliance upon the Borrower’s identity as a legal entity separate from the Servicer and its other Affiliates. Therefore, each Loan Party shall take all steps specifically required by this Agreement or reasonably required by any of the Agents to continue the Borrower’s identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of its Affiliates, and is not a division of Quest Diagnostics or any other Person. Without limiting the foregoing, each Loan Party will take such actions as shall be required in order that:
(a) The Borrower will be a limited purpose corporation whose primary activities are restricted in its Certificate of Incorporation to purchasing or otherwise acquiring from the Originators and owning, holding, granting security interests in the Collateral, entering into agreements for the financing and servicing of the Receivables, and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(b) Not less than one member of the Borrower’s Board of Directors (the “Independent Director”) shall be an individual who is not, and never has been, a direct, indirect or beneficial stockholder, officer, director, employee, affiliate, associate, material supplier or material customer of Quest Diagnostics or any of its Affiliates (other than an Affiliate organized with a limited purpose charter for the purpose of acquiring receivables or other financial assets or intangible property). The certificate of incorporation of the Borrower shall provide that (i) at least one member of the Borrower’s Board of Directors shall be an Independent Director, (ii) the Borrower’s Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Independent Director shall approve the taking of such action in writing prior to the taking of such action and (iii) the provisions requiring an independent director and the provision described in clauses (i) and (ii) of this paragraph (b) cannot be amended without the prior written consent of the Independent Director;
(c) The Independent Director shall not at any time serve as a trustee in bankruptcy for the Borrower or any Affiliate thereof;
(d) Any director, employee, consultant or agent of the Borrower will be compensated from the Borrower’s funds for services provided to the Borrower. The Borrower will not engage any agents (other than its attorneys, auditors and other professionals) and will not engage any Person other than the Servicer to deal with the Collateral as contemplated by the Transaction Documents;
(e) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Collateral. The Borrower will pay the Servicer the Servicer’s Fee pursuant hereto. The Borrower will not incur any material indirect or overhead expenses for items shared with Quest Diagnostics (or any other Affiliate thereof) which are not reflected in the Servicer’s Fee. To the extent, if any, that the Borrower (or any other Affiliate thereof) shares items of expenses not reflected in the Servicer’s Fee, for legal, auditing and other professional services and directors’ fees, 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 Quest Diagnostics shall pay all expenses of the Borrower and, to the extent provided in this Agreement, the Agents relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal, rating agency and other fees;
(f) The Borrower’s operating expenses will not be paid by any other Loan Party or other Affiliate of the Borrower;
(g) The Borrower will have its own stationery;
(h) The books of account, financial reports and records of the Borrower will be maintained separately from those of Quest Diagnostics and each other Affiliate of the Borrower although they may appear in Quest Diagnostics’ consolidated general ledger;
(i) Any financial statements of any Loan Party or Affiliate thereof which are consolidated to include the Borrower will contain detailed notes clearly stating that (A) all of the Borrower’s assets are owned by the Borrower, and (B) the Borrower is a separate legal entity with its own separate creditors that will be entitled to be satisfied out of the Borrower’s assets prior to any value in the Borrower becoming available to the Borrower’s equity holders; and the accounting records and any published financial statements of each of the Originators will clearly show that, for accounting purposes, the Receivables Purchased Assets and Related Assets have been sold by such Originator to the Borrower;
(j) The Borrower’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Servicer and the other Affiliates;
(k) Each Affiliate of the Borrower will strictly observe organizational formalities in its dealings with the Borrower, and, except as permitted pursuant to this Agreement with respect to Collections, funds or other assets of the Borrower will not be commingled with those of any of its Affiliates;
(l) No Affiliate of the Borrower will maintain joint bank accounts with the Borrower or other depository accounts with the Borrower to which any such Affiliate (other than in the Borrower’s or such Affiliate’s existing or future capacity as the Servicer hereunder or under the Sale Agreement) has independent access, provided that prior to demand by any of the Agents pursuant to Section 7.1(i) to establish a segregated Collateral Account, Collections may be deposited into general accounts of Quest Diagnostics, subject to the obligations of the Servicer hereunder;
(m) Each Affiliate of the Borrower will maintain arm’s length relationships with the Borrower, and each Affiliate of the Borrower that renders or otherwise furnishes services or merchandise to the Borrower will be compensated by the Borrower at market rates for such services or merchandise;
(n) No Affiliate of the Borrower will be, nor will it hold itself out to be, responsible for the debts of the Borrower or the decisions or actions in respect of the daily business and affairs of the Borrower. Quest Diagnostics and the Borrower will immediately correct any known misrepresentation with respect to the foregoing and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity;
(o) The Borrower will keep correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholder and board of directors, as applicable, and the resolutions, agreements and other instruments of the Borrower will be continuously maintained as official records by the Borrower; and
(p) The Borrower will conduct its business solely in its own legal name and in a manner separate from the Originators so as not to mislead others with whom they are dealing.
Appears in 1 contract
Samples: Credit and Security Agreement (Quest Diagnostics Inc)
Separate Existence of the Borrower. Each Loan Party of the Borrower and the Servicer hereby acknowledges that Lenders the Secured Parties, the Group Agents and the Agents Administrative Agent are entering into the transactions contemplated hereby by this Agreement and the other Transaction Documents in reliance upon the Borrower’s identity as a legal entity separate from any Originator, the Servicer Servicer, the Performance Guarantor and its other their Affiliates. Therefore, each Loan Party of the Borrower and Servicer shall take all steps specifically required by this Agreement or reasonably required by the Administrative Agent or any of the Agents Group Agent to continue the Borrower’s identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of its Affiliatesthe Performance Guarantor, the Originators, the Servicer and any other Person, and is not a division of Quest Diagnostics the Performance Guarantor, the Originators, the Servicer, its Affiliates or any other Person. Without limiting the foregoinggenerality of the foregoing and in addition to and consistent with the other covenants set forth herein, each Loan Party will of the Borrower and the Servicer shall take such actions as shall be required in order that:
(a) The Hill-Rom, the Borrower will be a limited purpose corporation whose primary activities are restricted in its Certificate and the Servicer shall assure that the Borrower, Performance Guarantor, Hill-Rom and each Originator (and each of Incorporation to purchasing or otherwise acquiring from their respective Affiliates) shall observe the Originators and owning, holding, granting security interests in the Collateral, entering into agreements applicable legal requirements for the financing and servicing recognition of the ReceivablesBorrower as a legal entity separate and apart from each of each Originator, Hill-Rom, Performance Guarantor, the Servicer and any of their respective Affiliates, and conducting such other activities as it deems necessary or appropriate comply with (and cause to carry out be true and correct) its primary activities;organizational documents and assuring that each of the following is complied with:
(bi) Not less than one member the Borrower shall maintain (or cause to be maintained) separate company records, books of account and financial statements (each of which shall be sufficiently full and complete to permit a determination of the Borrower’s Board assets and liabilities and to permit a determination of Directors the obligees thereon and the time for performance on each of the Borrower’s obligations) from those of each Hill-Rom Party and their respective Affiliates other than the Borrower;
(ii) except as otherwise permitted by this Agreement, the “Independent Director”) Borrower shall be an individual who is not, and never has been, a direct, indirect not commingle any of its assets or beneficial stockholder, officer, director, employee, affiliate, associate, material supplier or material customer funds with those of Quest Diagnostics any other Hill-Rom Party or any of its their respective Affiliates (other than an Affiliate organized with a limited purpose charter for the purpose of acquiring receivables or other financial assets or intangible property). The certificate of incorporation of the Borrower shall provide that Borrower;
(iiii) at least one member of the Borrower’s Board of Directors shall be an Independent Director and the limited liability company agreement of the Borrower shall provide: (i) for the same definition of “Independent Director” as used herein, (ii) the that Borrower’s Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Independent Director shall approve the taking of such action in writing prior to before the taking of such action and (iii) that the provisions requiring an independent director and the provision described in required by clauses (i) and (ii) of this paragraph (b) sentence cannot be amended except in accordance with this Agreement and without the prior written consent of the Independent DirectorDirector and the Administrative Agent;
(civ) the members and Board of Directors of the Borrower shall hold all regular and special meetings appropriate to authorize the Borrower’s actions. The members and directors of the Borrower may act from time to time by unanimous written consent or through one or more committees in accordance with the Borrower’s certificate of formation and its limited liability company agreement. The Borrower shall not take any Material Actions (as defined in its limited liability company agreement) without the consent of all its managers, including its Independent Director. Appropriate minutes of all meetings of the Borrower’s members and managers (and committees thereof) shall be kept by the Borrower;
(v) the Borrower shall compensate its Independent Director in accordance with its limited liability company agreement;
(vi) decisions with respect to the Borrower’s business and daily operations shall be independently made by Borrower and shall not be dictated by any other Hill-Rom Party or any of their respective Affiliates (except by Hill-Rom as a member and/or manager of the Borrower in accordance with the Borrower’s limited liability company agreement), provided that Servicer shall service the Pool Receivables as contemplated by the Transaction Documents;
(vii) the Borrower shall have its own separate stationery;
(viii) subject to clause (xvii) below, no transactions shall be entered between the Borrower, on the one hand and any other Hill-Rom Party or any Affiliate of any of them, on the other hand (other than as contemplated hereby and in the other Transaction Documents);
(ix) the Borrower shall act solely in its own name and through its own authorized managers, members, directors, officers and agents, except that, as a general matter, the Obligors will not be informed in the first instance that the Servicer, Originators or Performance Guarantor are acting on behalf of the Borrower. No Originator, Servicer, Performance Guarantor or any Affiliates of Hill-Rom shall be appointed as an agent of the Borrower, except in the capacity of Servicer or Sub-Servicer hereunder;
(x) none of the Servicer, any Originator, Performance Guarantor or any of their respective Affiliates shall advance funds or credit to the Borrower; and none of the Servicer, Performance Guarantor nor any Affiliate of the Servicer, any Originator or Performance Guarantor will otherwise supply funds or credit to, or guarantee any obligation of, the Borrower except for Hill-Rom’s contributions of capital to the Borrower and the issuance by the Borrower of Subordinated Notes to Originators as contemplated by the Transaction Documents;
(xi) the Borrower shall maintain a separate office which shall be physically separate from space occupied by an Originator, Performance Guarantor or any Affiliate of any Originator, or Performance Guarantor (but may be in a separate space occupied solely by the Borrower at the offices of any Originator or any Affiliate of any Originator) and shall be clearly identified as the Borrower’s office so it can be identified by outsiders;
(xii) other than as permitted by the Transaction Documents, the Borrower shall not guarantee, or otherwise become liable with respect to, any obligation of Hill-Rom, any Originator, the Servicer, Performance Guarantor or any Affiliate of any Originator;
(xiii) the Borrower shall at all times hold itself out to the public under the Borrower’s own name as a legal entity separate and distinct from its equity holders, members, managers, Performance Guarantor, Hill-Rom, each Originator, the Servicer and each of their respective Affiliates (the foregoing to include, but not be limited to, the Borrower not using the letterhead or telephone number of any such Person);
(xiv) Hill-Rom or Performance Guarantor may issue consolidated financial statements that will include the Borrower, but such financial statements will contain a footnote to the effect that the Receivables of the Borrower are not available to creditors of Hill-Rom or Performance Guarantor; in addition the Borrower shall prepare separate financial statements in compliance with GAAP consistently applied;
(xv) if any of the Borrower, the Servicer, Performance Guarantor or any Originator shall provide Records relating to Pool Receivables to any creditor of the Borrower or the Servicer, the Borrower or the Servicer, as the case may be, shall also provide (or cause any Originator to provide) to such creditor a notice indicating that the Collections relating to such Pool Receivables are held in trust pursuant to Section 4.01;
(xvi) each Originator’s financial statements shall disclose the separateness of the Borrower and that the Pool Receivables are owned by the Borrower and are not available to creditors of such Originator or of their respective Affiliates;
(xvii) any allocations of direct, indirect or overhead expenses for items shared between the Borrower and any Originator, Performance Guarantor or any of their respective Affiliates that are not included as part of the Servicing Fee shall be made among the Borrower and such Originator, Performance Guarantor or any of their respective Affiliates to the extent practical on the basis of actual use or value of services rendered and otherwise on a basis reasonably related to actual use or the value of services rendered;
(xviii) the Borrower shall not be named, directly or indirectly, as a contingent beneficiary or loss payee on any insurance policy covering the Servicer, any Originator, Performance Guarantor or any Affiliate of any of them other than insurance policies entered into in the ordinary course of business covering other Affiliates of any of the foregoing;
(xix) the Borrower shall maintain adequate capital in light of its contemplated business operations;
(xx) the Borrower shall generally maintain an arm’s-length relationship with each Originator, Performance Guarantor, the Servicer and its Affiliates and each transaction entered into with the Borrower shall be undertaken in good faith for a bona fide business purpose; and
(xxi) the Independent Director shall not at any time serve as a trustee in bankruptcy for the Borrower Borrower, the Servicer, any Originator, Performance Guarantor or any Affiliate thereof;of their respective Affiliates.
(db) Any directorThe Borrower agrees that (and Servicer, employee, consultant or agent in its capacity as the sole member of the Borrower, agrees that it will cause the Borrower will be compensated from to comply herewith), until the Borrower’s funds Final Payout Date:
(i) the Borrower shall not (A) create any Security of any kind, or (B) incur, assume, guarantee or otherwise become directly or indirectly liable for services provided to the Borrower. The Borrower will not engage or in respect of any agents (other than its attorneys, auditors and other professionals) and will not engage any Person Debt or obligation other than the Servicer to deal with the Collateral Subordinated Notes and otherwise as contemplated expressly permitted by the Transaction Documents;
(e) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Collateral. The Borrower will pay the Servicer the Servicer’s Fee pursuant hereto. The Borrower will not incur any material indirect or overhead expenses for items shared with Quest Diagnostics (or any other Affiliate thereof) which are not reflected in the Servicer’s Fee. To the extent, if any, that the Borrower (or any other Affiliate thereof) shares items of expenses not reflected in the Servicer’s Fee, for legal, auditing and other professional services and directors’ fees, 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 Quest Diagnostics shall pay all expenses of the Borrower and, to the extent provided in this Agreement, the Agents relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal, rating agency and other fees;
(f) The Borrower’s operating expenses will not be paid by any other Loan Party or other Affiliate of the Borrower;
(g) The Borrower will have its own stationery;
(h) The books of account, financial reports and records of the Borrower will be maintained separately from those of Quest Diagnostics and each other Affiliate of the Borrower although they may appear in Quest Diagnostics’ consolidated general ledger;
(i) Any financial statements of any Loan Party or Affiliate thereof which are consolidated to include the Borrower will contain detailed notes clearly stating that (A) all of the Borrower’s assets are owned by the Borrower, and (Bii) the Borrower is a separate legal entity with shall not sell, pledge or dispose of any of its own separate creditors that will be entitled to be satisfied out of the Borrower’s assets prior to any value in the Borrower becoming available to the Borrower’s equity holders; and the accounting records and any published financial statements of each of the Originators will clearly show that, for accounting purposes, the Receivables and Related Assets have been sold by such Originator to the Borrower;
(j) The Borrower’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Servicer and the other Affiliates;
(k) Each Affiliate of the Borrower will strictly observe organizational formalities in its dealings with the Borrower, andassets, except as permitted by, or as provided in, the Transaction Documents;
(iii) the Borrower shall not purchase any asset (or make any investment, by share purchase, loan or otherwise) except as permitted by, or as provided in, the Transaction Documents;
(iv) the Borrower shall not engage in any activity (whether or not pursued for gain or other pecuniary advantage) other than as permitted by the Transaction Documents;
(v) the Borrower shall not create, assume or suffer to exist any Adverse Claim on any of its assets other than any Lien created pursuant to this Agreement with the Transaction Documents or any Permitted Lien;
(vi) the Borrower shall not make any payment, directly or indirectly, to, or for the account or benefit of, any owner of any Voting Stock, security interest or equity interest in Borrower or any Affiliate of any such owner (except, in each case, as expressly permitted by the Transaction Documents);
(vii) the Borrower shall not make, declare or otherwise commence or become obligated in respect to Collectionsof, funds any dividend, stock or other assets security redemption or purchase, distribution or other payment to, or for the account or benefit of, any owner of any Voting Stock or other equity interest, security interest or equity interest in the Borrower to any such owner or any Affiliate of any such owner other than from funds received by it under Article IV and so long as, in any case, (I) the result would not directly or indirectly cause any non-compliance with Section 8.03(j) or (II) before or after giving effect thereto, an Event of Default shall not have occurred that remains continuing or an Unmatured Event of Default shall not have occurred that remains continuing;
(viii) the Borrower shall not acquiesce in, or direct the Servicer or any other agent to take, any action that is prohibited to be taken by the Borrower in clauses (i) through (vii) above or in Section 8.03 hereof;
(ix) the Borrower shall not have any employees; and
(x) the Borrower will provide for not be commingled with those less than ten (10) Business Days’ prior written notice to the Administrative Agent of any removal, replacement or appointment of its Affiliates;any director that is to serve as an Independent Director, such notice to include the identity of the proposed replacement Independent Director, together with a certification that such replacement satisfies the requirements for an Independent Director set forth in this Agreement and the limited liability company agreement of the Borrower.
(lc) No Affiliate None of the Borrower will maintain joint bank accounts with the Borrower or other depository accounts with the Borrower to which any such Affiliate (other than in the Borrower’s or such Affiliate’s existing or future capacity as the Servicer hereunder or under the Sale Agreement) has independent accessHill-Rom, provided that prior to demand by any of the Agents pursuant to Section 7.1(i) to establish a segregated Collateral Account, Collections may be deposited into general accounts of Quest Diagnostics, subject to the obligations of the Servicer hereunder;
(m) Each Affiliate of the Borrower will maintain arm’s length relationships with the Borrower, and each Affiliate of the Borrower that renders or otherwise furnishes services or merchandise to the Borrower will be compensated by the Borrower at market rates for such services or merchandise;
(n) No Affiliate of the Borrower will be, nor will it hold itself out to be, responsible for the debts of the Borrower or the decisions Servicer shall take any action or actions in respect permit any of the daily business and affairs of the Borrower. Quest Diagnostics and the Borrower will immediately correct their respective Affiliates to take any known misrepresentation action inconsistent with respect to the foregoing and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity;
(o) The Borrower will keep correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholder and board of directors, as applicable, and the resolutions, agreements and other instruments of the Borrower will be continuously maintained as official records by the Borrower; and
(p) The Borrower will conduct its business solely in its own legal name and in a manner separate from the Originators so as not to mislead others with whom they are dealingthis Section 8.08.
Appears in 1 contract
Samples: Loan and Security Agreement (Hill-Rom Holdings, Inc.)
