Separate Identity. The Servicer hereby covenants and agrees to take all actions required to maintain the Issuer's status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the following: (i) Issuer shall conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such; (ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer; (iii) Issuer shall (A) pay its own incidental administrative costs and expenses from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent; practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered; (iv) Issuer shall at all times have at least two independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;
Appears in 2 contracts
Samples: Indenture and Servicing Agreement (MCM Capital Group Inc), Indenture and Servicing Agreement (MCM Capital Group Inc)
Separate Identity. The Servicer Seller hereby covenants and agrees to take all actions required to maintain the Issuer's status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingSeller shall:
(i) cause the Issuer shall to conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such;employees of the Issuer (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees):
(ii) cause the Issuer shall to compensate all employees, consultants and agents directly or indirectly through reimbursement of the ServicerSeller, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the ServicerSeller, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer Seller on a basis which reflects the respective services rendered to the Issuer and the ServicerSeller;
(iii) cause the Issuer shall to (A) pay its own incidental administrative costs and expenses from its own funds, funds and (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the ServicerSeller, on the basis of actual use to the extent; extent practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) cause the Issuer shall to at all times have at least two independent directors who satisfy the definition of Independent Director directors, as provided in the Issuer's Certificate of Incorporation, ;
(v) cause the Issuer to maintain its books and have at least one officer responsible for managing records separate from those of any Affiliate;
(vi) cause the Issuer to prepare its day-to-day business and manage such business by or under the direction financial statements separately from those of its board of directorsAffiliates and ensure that any consolidated financial statements have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders and therefore to any creditors, as the case may be;
Appears in 2 contracts
Samples: Receivables Contribution Agreement (MCM Capital Group Inc), Receivables Contribution Agreement (MCM Capital Group Inc)
Separate Identity. The Servicer Issuer hereby covenants and agrees to take all actions required to maintain the Issuer's Issuers status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingshall:
(i) Issuer shall conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as suchsuch (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees);
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer;
(iii) Issuer shall (A) pay its own incidental administrative costs and expenses from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent; extent practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) Issuer shall at all times have at least two (2) independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becoming
(vii) not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Issuer's operating expenses;
(ix) not guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of directors in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation and Bylaws are duly and validly taken;
(xii) respond to any inquires with respect to ownership of a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable;
(xiii) on or before March 31 of each year, beginning in 1999, the Issuer shall deliver to the Trustee an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite company formalities and conducted its business and operations in such a manner as required for the Issuer to maintain its separate company existence from any other entity; and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel remain true and correct at all times.
Appears in 2 contracts
Samples: Indenture and Servicing Agreement (MCM Capital Group Inc), Indenture and Servicing Agreement (MCM Capital Group Inc)
Separate Identity. The Servicer Issuer hereby covenants and agrees to take all actions required to maintain the Issuer's status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingshall:
(i) Issuer shall conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as suchsuch (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees);
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer;
(iii) Issuer shall (A) pay its own incidental administrative costs and expenses from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent; extent practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) Issuer shall at all times have at least two (2) independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a
Appears in 2 contracts
Samples: Indenture and Servicing Agreement (MCM Capital Group Inc), Indenture and Servicing Agreement (MCM Capital Group Inc)
Separate Identity. The Servicer hereby covenants and agrees to take all actions required to maintain the Issuer's status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the following:
(i) Issuer shall conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such;
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any 78 84 employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer;
(iii) Issuer shall (A) pay its own incidental administrative costs and expenses from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent; practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) Issuer shall at all times have at least two independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;
(v) Issuer shall maintain its books and records separate from those of any Affiliate;
(vi) Issuer shall prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders and therefore to any of their respective creditors, as the case may be;
(vii) Issuer shall not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement), and not hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) Issuer shall not permit any of its Affiliates to pay the Issuer's operating expenses;
(ix) Issuer shall not permit Issuer to guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) Issuer shall maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
Appears in 2 contracts
Samples: Indenture and Servicing Agreement (MCM Capital Group Inc), Indenture and Servicing Agreement (MCM Capital Group Inc)
Separate Identity. The Servicer Seller hereby covenants and agrees to take all actions required to maintain the Issuer's status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingSeller shall:
(i) cause the Issuer shall to conduct all of its business, and make all communications to third parties (including all invoices (if any), lettersletter, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such;employees of the Issuer:
(ii) cause the Issuer shall to compensate all employees, consultants and agents directly or indirectly through reimbursement of the ServicerSeller, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the ServicerSeller, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer Seller on a basis which reflects the respective services rendered to the Issuer and the ServicerSeller;
(iii) cause the Issuer shall to (A) pay its own incidental administrative costs and expenses from its own funds, funds and (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the ServicerSeller, on the basis of actual use to the extent; extent practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) cause the Issuer shall to at all times have at least two independent directors who satisfy the definition of Independent Director Directors, as provided in the Issuer's Certificate of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;
Appears in 2 contracts
Samples: Receivables Contribution Agreement (MCM Capital Group Inc), Receivables Contribution Agreement (MCM Capital Group Inc)
Separate Identity. The Servicer hereby covenants and agrees to take Take all actions required to maintain the IssuerSeller's status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingSeller shall:
(i) Issuer shall conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as suchsuch and not as employees of any other Affiliate of the Seller (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Seller's employees);
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the ServicerOriginator each calendar quarter, from the IssuerSeller's bank accounts, for services provided to the Issuer Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer Seller is also an employee, consultant or agent of any Affiliate of the ServicerSeller, allocate the compensation of such employee, consultant or agent between the Issuer Seller and the Servicer such Affiliate on a basis which reflects the respective services rendered to the Issuer Seller and the Servicersuch Affiliate;
(iii) Issuer shall (A) pay its own incidental administrative costs operating expenses and expenses liabilities from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other for items of cost and expense shared between the Issuer Seller and the Servicer, any Affiliate on the basis of actual use to the extent; practicableextent practicable and, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or and allocate taxes on the value basis of services renderedtheir respective incomes in accordance with applicable federal regulations;
(iv) Issuer shall at all times have at least two independent directors who satisfy one "Independent Director", as defined in and as required under the definition of Independent Director provided in the Seller's Certificate of Incorporation, Incorporation and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its other Affiliates and insure that any consolidated financial statements of the Originator have notes to the effect that the Seller is a separate corporate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders and therefore to any creditors of the Originator;
(vii) use its best efforts not to commingle its funds or other assets with those of any other Affiliate, and not to hold its assets in any manner that would create an appearance that such assets belong to any other Affiliate, and not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals;
(viii) not permit any Affiliate to pay its operating expenses (except pursuant to allocation arrangements that comply with the requirements of subsection (ii) or (iii) of this Section 5.01(l) or pursuant to the terms of the Purchase Agreement);
(ix) not guarantee any obligation of any Affiliate nor (to the extent that the Seller has the legal power to prevent such) have any of its obligations guaranteed by any such Affiliate, (either directly or by seeking credit based on the assets of such Affiliate) or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery and a telephone number separate from that of any Affiliate and which telephone number will be answered in its own name, and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of directors in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation and by-laws are duly and validly taken;
(xii) maintain a separate office from the offices of any of its Affiliates and identify such office by a sign in its own name;
(xiii) pay dividends only if (A) no other dividend has been paid during the calendar month in which such dividend is paid, (B) such dividend has been duly authorized by its board of directors in accordance with applicable law and (C) its net worth, determined immediately after giving effect to such dividend is at least $2,000,000; and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion described in Section 3.01(x) remain true and correct at all times.
Appears in 1 contract
Separate Identity. The Servicer hereby covenants Borrower acknowledges that the Agent and agrees to the Lender are entering into the transactions contemplated by this Agreement in reliance upon the Borrower’s identity as a legal entity that is separate from the Originator. Therefore, from and after the date of execution and delivery of this Agreement, the Borrower shall take all actions required reasonable steps, including, without limitation, all steps that the Agent or the Lender may from time to time reasonably request, to maintain the Issuer's status Borrower’s identity as a separate legal entityentity and to make it manifest to third parties that the Borrower is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof (other than the Borrower) and not just a division of the Originator or any such Affiliate. Without limiting the foregoinggenerality of the foregoing and in addition to the other covenants set forth herein, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingBorrower will:
(i) Issuer shall hold itself out to the public and conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely own business in its own name (and not as a division of any other Person), and require that its employeesall full-time employees of the Borrower, if any, when conducting its business identify themselves as suchsuch and not as employees of the Originator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Borrower’s employees);
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicerdirectly, from the Issuer's bank accountsBorrower’s own funds, for services provided to the Issuer Borrower by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer Borrower is also an employee, consultant or agent of the ServicerOriginator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between the Issuer Borrower and the Servicer Originator or such Affiliate, as applicable, on a basis which that reflects the respective services rendered to the Issuer Borrower and the ServicerOriginator or such Affiliate, as applicable;
(iii) Issuer shall (A) pay maintain separate stationery, invoices, checks and other business forms in its own incidental administrative costs name;
(iv) conduct all transactions with the Originator and expenses from the Servicer (including, without limitation, any delegation of its own fundsobligations hereunder to the Servicer) strictly on an arm’s-length basis, (B) allocate fairly and reasonably all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other for items of cost and expense shared between the Issuer Borrower and the Servicer, Originator on the basis of actual use to the extent; practicableextent practicable and, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendereduse;
(ivv) Issuer shall at all times have a Board of Directors consisting of at least two independent directors who one member that is an Independent Director;
(vi) observe all organizational formalities as a distinct entity, and ensure that all entity actions relating to (A) the selection, maintenance or replacement of the Independent Director, (B) the dissolution or liquidation of the Borrower or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving the Borrower, are duly authorized by unanimous vote of its Board of Directors (including the Independent Director);
(vii) maintain the Borrower’s books and records separate and distinct from those of the Originator and any Affiliate thereof and otherwise in such a manner so that the assets of the Borrower are readily identifiable as its own assets rather than assets of the Originator or any Affiliate thereof;
(viii) prepare its financial statements separately from those of the Originator and insure that any consolidated financial statements of the Parent or any Affiliate thereof that include the Borrower and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating that the Borrower is a separate legal entity and that its assets will be available only to satisfy the claims of the creditors of the Borrower;
(ix) except as herein specifically otherwise provided, maintain the funds and other assets of the Borrower separate from, and not commingled with, those of the Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Borrower alone is the account party, into which the Borrower alone makes deposits and from which the Borrower alone (or the Agent hereunder) has the power to make withdrawals;
(x) pay all of the Borrower’s operating expenses from the Borrower’s own assets (except for certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 7.1(i)) and pay its own liabilities out of its own funds;
(xi) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (A) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (B) the incurrence of obligations under this Agreement, (C) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator thereunder for the purchase of Receivables from the Originator under the Receivables Sale Agreement, and (D) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(xii) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its Certificate of Formation or Limited Liability Company Agreement in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 7.1(i) of this Agreement;
(xiii) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Agent;
(xiv) maintain its entity separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(xv) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained;
(xvi) operate its business and activities such that it (A) does not hold itself out as having agreed to guarantee or be obligated for the debts of the Originator or any Affiliate thereof, (B) does not hold out its credit as being available to satisfy the obligations of the Originator or any Affiliate thereof and (C) has not pledged assets for the benefit of the Originator or any Affiliate thereof; and
(xvii) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued by Xxxxxxx Xxxxx LLP as counsel for the Borrower, in connection with the closing or initial Loan under this Agreement and relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times; and
(xviii) maintain its organizational documents in conformity with this Agreement, such that its organizational documents, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to the Agent of the replacement or appointment of any director that is to serve as an Independent Director for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that the Borrower certify that the designated Person satisfied the criteria set forth in the definition herein of Independent Director provided and the Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the Certificate definition herein of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directorsIndependent Director;
Appears in 1 contract
Samples: Receivables Loan Agreement (Arkansas Best Corp /De/)
Separate Identity. The Servicer hereby covenants and agrees to take Take all actions required to maintain the IssuerBorrower's ----------------- status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingBorrower shall:
(i) Issuer shall conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as suchsuch and not as employees of any other Affiliate of the Borrower (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Borrower's employees);
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the ServicerSeller, from the IssuerBorrower's bank accounts, for services provided to the Issuer Borrower by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer Borrower is also an employee, consultant or agent of any Affiliate of the ServicerBorrower, allocate the compensation of such employee, consultant or agent between the Issuer Borrower and the Servicer such Affiliate on a basis which reflects the respective services rendered to the Issuer Borrower and such Affiliate (provided -------- that any fees and expenses payable to the ServicerCustodian under the Custodial Agreement shall be the responsibility of the Servicer to be paid out of its Servicing Fee) other than with respect to the services covered under the terms of the Administrative Services Agreement;
(iii) Issuer shall (A) pay its own incidental administrative costs and expenses not covered under the terms of the Administrative Services Agreement, from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer Borrower and any Affiliate, pursuant to the Servicerterms of the Administrative Services Agreement, on the basis of actual use to the extent; practicableextent practicable and, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered, and (C) allocate taxes on the basis set forth in the Tax Sharing Agreement;
(iv) Issuer shall at all times have at least two independent directors who satisfy one "Independent Director", which satisfies the definition of Independent Director provided requirements set forth in Section 4.01(n) hereof and under ---------------- the Borrower's Certificate of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statements of each of FAC and FCI have notes to the effect that the Borrower is a separate corporate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders and therefore to any creditors of FAC or FCI, as the case may be;
(vii) not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment which are not material in the aggregate and which have been mistakenly forwarded by an Obligor directly to any of FCI, FAC or any of their respective Affiliates), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Borrower's operating expenses (except pursuant to allocation arrangements that comply with the requirements of subsection (ii) or (iii) of this Section 5.01(o) --------------- ----- --------------- or pursuant to the terms of the Receivables Purchase Agreement);
(ix) not guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate, (either directly or by seeking credit based on the assets of such Affiliate) or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery and a telephone number separate from that of any Affiliate and which telephone number will be answered in its own name, and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of directors in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation and by-laws are duly and validly taken;
(xii) maintain a separate office from the offices of any of its Affiliates and identify such office by a sign in its own name;
(xiii) not advance funds or other assets to, or commit to advance funds or other assets to (other than by way of payments in respect of a Purchase on any Contract Grant Date under the Receivables Purchase Agreement), or accept funds from (other than by way of contributions to capital) FAC or any of its Affiliates for any purpose or transaction (other than in compliance with the provisions of Section 5.02(k) with respect to ---------------- transactions with Affiliates), or permit FAC or any of its Affiliates to be involved in the management of the Borrower;
(xiv) respond to any inquiries with respect to ownership of a Pledged Contract by stating that it is the owner of such Pledged Contract, and that such Pledged Contract is Granted to the Collateral Agent;
(xv) on or before March 31 of each year, beginning in 2001, the Borrower shall deliver to the Deal Agent and each Managing Agent an Officer's Certificate stating that Borrower has, during the preceding year, observed all of the requisite corporate formalities and conducted its business and operations in such a manner as required for the Borrower to maintain its separate corporate existence from any other entity; and
(xvi) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Borrower's counsel and described in the List of Closing Documents attached at Exhibit C remain true and correct at all times. ---------
Appears in 1 contract
Separate Identity. The Servicer hereby covenants and agrees to take all actions required to maintain the Issuer's status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the following:
(i) Issuer shall conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such;
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer;
(iii) Issuer shall (A) pay its own incidental administrative costs and expenses from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent; practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) Issuer shall at all times have at least two independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;
(v) Issuer shall maintain its books and records separate from those of any Affiliate;
(vi) Issuer shall prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders and therefore to any of their respective creditors, as the case may be;
(vii) Issuer shall not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) Issuer shall not permit any of its Affiliates to pay the Issuer's operating expenses;
(ix) Issuer shall not permit Issuer to guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) Issuer shall maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
(xi) Issuer shall hold regular meetings of its board of directors in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all company procedures required by its Certificate of Incorporation and Bylaws are duly and validly taken;
(xii) Issuer shall respond to any inquires made directly to it with respect to ownership of a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable; and
(xiii) Issuer shall take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuers counsel remain true and correct at all times.
Appears in 1 contract
Samples: Indenture and Servicing Agreement (MCM Capital Group Inc)
Separate Identity. The Servicer Issuer hereby covenants and agrees to take all actions required to maintain the Issuer's Issuers status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingshall:
(i) Issuer shall conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as suchsuch (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees);
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer;
(iii) Issuer shall (A) pay its own incidental administrative costs and expenses from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent; practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) Issuer shall at all times have at least two (2) independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders and therefore to any of their respective creditors, as the case may be;
(vii) not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Issuer's operating expenses;
(ix) not guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of directors in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation and Bylaws are duly and validly taken;
(xii) respond to any inquires with respect to ownership of a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable;
(xiii) on or before March 31 of each year, beginning in 2000, the Issuer shall deliver to the Trustee an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite company formalities and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel remain true and correct at all times.
Appears in 1 contract
Samples: Indenture and Servicing Agreement (MCM Capital Group Inc)
Separate Identity. The Servicer hereby covenants and agrees to Issuer will take all actions required to maintain the Issuer's status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingwill:
(i) Issuer shall conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as suchsuch and not as employees of any other Affiliate of the Issuer (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees);
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, Originator from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents (except to the extent provided under the Administrative Services Agreement) and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of any Affiliate of the ServicerIssuer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer such Affiliate on a basis which reflects the respective services rendered to the Issuer and the Servicersuch Affiliate;
(iii) Issuer shall (A) pay its own incidental administrative costs and expenses not covered under the terms of the Administrative Services Agreement, from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and any Affiliate, pursuant to the Servicerterms of the Administrative Services Agreement, on the basis of actual use to the extent; practicableextent practicable and, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered, and (C) allocate taxes on the basis set forth in the Administrative Services Agreement;
(iv) Issuer shall at all times have at least two independent directors who "Independent Directors", both of which satisfy the definition of Independent Director provided requirements set forth in Section 2.03(n)(ii) hereof and under the Issuer's Certificate of Incorporation, and have at least one officer responsible for managing its day-day- to-day business and manage such business by or under the direction of its board of directors;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its Affiliates and use its best efforts to ensure that any consolidated financial statements of the Originator have notes to the effect that the Issuer is a separate corporate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders and therefore to any creditors of the Originator;
(vii) not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment which are not material in the aggregate and which have been mistakenly forwarded by an Obligor directly to the Originator or any of its other Affiliates), and not to hold its assets in any manner that would create an appearance that such assets belong to the Originator or any such Affiliate, not maintain bank accounts or other depository accounts to which the Originator or any such Affiliate is an account party, into which the Originator or any such Affiliate makes deposits or from which the Originator or any such Affiliate has the power to make withdrawals, and not act as an agent or representative of the Originator or any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Issuer's operating expenses (except pursuant to allocation arrangements that comply with the requirements of subsection (ii) or (iii) of this Section 2.05(k) or pursuant to the terms of the Purchase and Contribution Agreement);
(ix) not guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate, (either directly or by seeking credit based on the assets of such Affiliate) or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery and a telephone number separate from that of any Affiliate and which telephone number will be answered in its own name, and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of directors in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation and by-laws are duly and validly taken;
(xii) maintain a separate office from the offices of any of its Affiliates and identify such office by a sign in its own name;
(xiii) not advance funds or other assets to, or commit to advance funds or other assets to (other than by way of payments in respect of a Purchase under the Purchase and Contribution Agreement), or accept funds from (other than by way of contributions to capital) the Originator or any of its other Affiliates for any purpose or transaction (other than in compliance with the provisions of Section 2.06(j) with respect to transactions with Affiliates), or permit the Originator or any of its other Affiliates to be involved in the management of the Issuer;
(xiv) respond to any inquiries with respect to ownership of an Advance by stating that it is the owner of such Advance, and that an interest in such Advance has been granted to the Trustee for the benefit of the Secured Parties;
(xv) on or before May 31 of each year, deliver to the Insurer an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite corporate formalities and conducted its business and operations in such a manner as required for the Issuer to maintain its separate corporate existence from any other entity; and
(xvi) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion described in the List of Closing Documents attached as Exhibit F remain true and correct at all times.
Appears in 1 contract
Samples: Master Trust Indenture and Security Agreement (Ag Services of America Inc)
Separate Identity. The Servicer hereby covenants and agrees to take Take all actions required to maintain the ------------------ Issuer's status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingshall:
(i) Issuer shall conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as suchsuch and not as employees of any other Affiliate of the Issuer (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees);
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the ServicerSeller, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of any Affiliate of the ServicerIssuer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer such Affiliate on a basis which reflects the respective services rendered to the Issuer and such Affiliate (provided that any fees and expenses payable to the ServicerCustodian under the Custodial Agreement shall be the responsibility of the Servicer to be paid out of its Servicing Fee) other than with respect to the services covered under the terms of the Administrative Services Agreement;
(iii) Issuer shall (A) pay its own incidental administrative costs and expenses not covered under the terms of the Administrative Services Agreement, from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and any Affiliate, pursuant to the Servicerterms of the Administrative Services Agreement, on the basis of actual use to the extent; practicableextent practicable and, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered, and (C) allocate taxes on the basis set forth in the Tax Sharing Agreement;
(iv) Issuer shall at all times have at least two independent directors who satisfy one "Independent Director", which satisfies the definition of Independent Director provided requirements set forth in Section 3.1(n) hereof and under the Issuer's Certificate of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statements of each of FAC and FCI have notes to the effect that the Issuer is a separate corporate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders and therefore to any creditors of FAC or FCI, as the case may be;
(vii) not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment which are not material in the aggregate and which have been mistakenly forwarded by an Obligor directly to any of FCI, FAC or any of their respective Affiliates), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Issuer's operating expenses (except pursuant to allocation arrangements that comply with the requirements of subsection (ii) or (iii) of this Section 4.1(o) or pursuant -------------- --- to the terms of the Receivables Purchase Agreement);
(ix) not guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate, (either directly or by seeking credit based on the assets of such Affiliate) or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery and a telephone number separate from that of any Affiliate and which telephone number will be answered in its own name, and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of directors in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation and by-laws are duly and validly taken;
(xii) maintain a separate office from the offices of any of its Affiliates and identify such office by a sign in its own name;
(xiii) not advance funds or other assets to, or commit to advance funds or other assets to (other than by way of payments in respect of a Purchase on any Contract Grant Date under the Receivables Purchase Agreement), or accept funds from (other than by way of contributions to capital) FAC or any of its Affiliates for any purpose or transaction (other than in compliance with the provisions of Section 5.02(k) with respect to transactions with Affiliates), -------------- or permit FAC or any of its Affiliates to be involved in the management of the Issuer;
(xiv) respond to any inquiries with respect to ownership of a Pledged Contract by stating that it is the owner of such Pledged Contract, and that such Pledged Contract is Granted to the Collateral Agent;
(xv) on or before September 30 of each year, beginning in 1999, the Issuer shall deliver to the Trustee an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite corporate formalities and conducted its business and operations in such a manner as required for the Issuer to maintain its separate corporate existence from any other entity; and
(xvi) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel and described in the List of Closing Documents attached at Exhibit "D" remain true and correct at all times. ---------- (p) Computer Files. Mark or cause to be marked xxxh Pledged Contract in -------------- its computer files as described in Section 3.3(b) hereof.
Appears in 1 contract
Samples: Pledge and Servicing Agreement (Fairfield Communities Inc)
Separate Identity. The Servicer hereby covenants and agrees to take Take all actions required to maintain the IssuerSeller's status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingSeller shall:
(i) Issuer shall conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as suchsuch and not as employees of any other Affiliate of the Seller (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Seller's employees);
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the ServicerOriginator each calendar quarter, from the IssuerSeller's bank accounts, for services provided to the Issuer Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer Seller is also an employee, consultant or agent of any Affiliate of the ServicerSeller, allocate the compensation of such employee, consultant or agent between the Issuer Seller and the Servicer such Affiliate on a basis which reflects the respective services rendered to the Issuer Seller and the Servicersuch Affiliate;
(iii) Issuer shall (A) pay its own incidental administrative costs operating expenses and expenses liabilities from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other for items of cost and expense shared between the Issuer Seller and the Servicer, on the basis of actual use to the extent; practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;any
(iv) Issuer shall at all times have at least two independent directors who satisfy one "Independent Director", as defined in and as required under the definition of Independent Director provided in the Seller's Certificate of Incorporation, Incorporation and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its other Affiliates and insure that any consolidated financial statements of the Originator have notes to the effect that the Seller is a separate corporate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders and therefore to any creditors of the Originator;
(vii) use its best efforts not to commingle its funds or other assets with those of any other Affiliate, and not to hold its assets in any manner that would create an appearance that such assets belong to any other Affiliate, and not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals;
(viii) not permit any Affiliate to pay its operating expenses (except pursuant to allocation arrangements that comply with the requirements of subsection (ii) or (iii) of this Section 5.01(l) or pursuant to the terms of the Originator Purchase Agreement);
(ix) not guarantee any obligation of any Affiliate nor (to the extent that the Seller has the legal power to prevent such) have any of its obligations guaranteed by any such Affiliate, (either directly or by seeking credit based on the assets of such Affiliate) or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery and a telephone number separate from that of any Affiliate and which telephone number will be answered in its own name, and have
(xi) hold regular meetings of its board of directors (not less frequently than quarterly) in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation and by-laws are duly and validly taken;
(xii) maintain a separate office from the offices of any of its Affiliates and identify such office by a sign in its own name;
(xiii) pay dividends only if (A) no other dividend has been paid during the calendar month in which such dividend is paid, (B) such dividend has been duly authorized by its board of directors in accordance with applicable law and (C) its net worth, determined immediately after giving effect to such dividend is at least $2,000,000; and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion described in Section 3.01(a)(x) remain true and correct at all times.
Appears in 1 contract
Separate Identity. The Servicer hereby covenants and agrees to take Take all actions required to maintain the IssuerBorrower's status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingBorrower shall:
(i) Issuer shall conduct all of its business, and make all communications communi- cations to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as suchsuch and not as employees of any other Affiliate of the Borrower (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Borrower's employees);
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the ServicerSeller, from the IssuerBorrower's bank accounts, for services provided to the Issuer Borrower by such employees, consultants and agents (except to the extent provided under the Administrative Services Agreement) and, to the extent any employee, consultant or agent of the Issuer Borrower is also an employee, consultant or agent of any Affiliate of the ServicerBorrower, allocate the compensation of such employee, consultant or agent between the Issuer Borrower and the Servicer such Affiliate on a basis which reflects the respective services rendered to the Issuer Borrower and the Servicersuch Affiliate;
(iii) Issuer shall (A) pay its own incidental administrative costs and expenses not covered under the terms of the Administra- tive Services Agreement, from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer Borrower and any Affiliate, pursuant to the Servicerterms of the Administrative Services Agreement, on the basis of actual use to the extent; practicableextent practicable and, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered, and (C) allocate taxes on the basis set forth in the Administrative Services Agreement;
(iv) Issuer shall at all times have at least two independent directors who "Independent Directors", both of which satisfy the definition of Independent Director provided requirements set forth in Section 4.01(n)(ii) hereof and under the Borrower's Certificate of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its Affiliates and use its best efforts to ensure that any consolidated financial statements of Ag Services have notes to the effect that the Borrower is a separate corporate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders and therefore to any creditors of Ag Services;
(vii) not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment which are not material in the aggregate and which have been mistakenly forwarded by an Obligor directly to Ag Services or any of its other Affiliates), and not to hold its assets in any manner that would create an appearance that such assets belong to Ag Services or any such Affiliate, not maintain bank accounts or other depository accounts to which Ag Services or any such Affiliate is an account party, into which Ag Services or any such Affiliate makes deposits or from which Ag Services or any such Affiliate has the power to make withdrawals, and not act as an agent or representative of Ag Services or any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Borrower's operating expenses (except pursuant to allocation arrangements that comply with the requirements of subsection (ii) or (iii) of this Section 5.01(l) or pursuant to the terms of the Purchase and Contribution Agreement);
(ix) not guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate, (either directly or by seeking credit based on the assets of such Affiliate) or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery and a telephone number separate from that of any Affiliate and which telephone number will be answered in its own name, and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of directors in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation and by-laws are duly and validly taken;
(xii) maintain a separate office from the offices of any of its Affiliates and identify such office by a sign in its own name;
(xiii) not advance funds or other assets to, or commit to advance funds or other assets to (other than by way of payments in respect of a Purchase under the Purchase and Contribution Agreement), or accept funds from (other than by way of contributions to capital) Ag Services or any of its other Affiliates for any purpose or transaction (other than in compliance with the provisions of Section 5.02(j) with respect to transactions with Affiliates), or permit Ag Services or any of its other Affiliates to be involved in the management of the Borrower;
(xiv) respond to any inquiries with respect to ownership of an Advance by stating that it is the owner of such Advance, and that an interest in such Advance has been Granted to the Collateral Agent for the benefit of itself, the Administrative Agent, Triple-A and the Surety;
(xv) on or before May 31 of each year, beginning in 1997, deliver to the Collateral Agent an Officer's Certificate stating that Borrower has, during the preceding year, observed all of the requisite corporate formalities and conducted its business and operations in such a manner as required for the Borrower to maintain its separate corporate existence from any other entity; and
(xvi) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion described in the List of Closing Documents attached as Exhibit I remain true and correct at all times.
Appears in 1 contract
Separate Identity. The Servicer hereby covenants and agrees to take Take all actions required to maintain the IssuerBorrower's status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingBorrower shall:
(i) Issuer shall conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as suchsuch and not as employees of any other Affiliate of the Borrower (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Borrower's employees);
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the ServicerSeller, from the IssuerBorrower's bank accounts, for services provided to the Issuer Borrower by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer Borrower is also an employee, consultant or agent of any Affiliate of the ServicerBorrower, allocate the compensation of such employee, consultant or agent between the Issuer Borrower and the Servicer such Affiliate on a basis which reflects the respective services rendered to the Issuer Borrower and such Affiliate (provided that any fees and expenses payable to the Servicer-------- Custodian under the Custodial Agreement shall be the responsibility of the Servicer to be paid out of its Servicing Fee) other than with respect to the services covered under the terms of the Administrative Services, Lease and Operating Agreement;
(iii) Issuer shall (A) pay its own incidental administrative costs and expenses not covered under the terms of the Administrative Services, Lease and Operating Agreement, from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer Borrower and any Affiliate, pursuant to the Servicerterms of the Administrative Services, Lease and Operating Agreement, on the basis of actual use to the extent; practicableextent practicable and, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered, and (C) allocate taxes on the basis set forth in the Tax Sharing Agreement;
(iv) Issuer shall at all times have at least two independent directors who satisfy "Independent Directors", one of which satisfies the definition of Independent Director provided requirements set forth in Section 4.01(n) hereof and under the -------------- Borrower's Certificate of Incorporation, and have at least one officer responsible for managing its day-to-to- day business and manage such business by or under the direction of its board of directors;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statements of each of FAC and FCI have notes to the effect that the Borrower is a separate corporate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders and therefore to any creditors of FAC or FCI, as the case may be;
(vii) not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment which are not material in the aggregate and which have been mistakenly forwarded by an Obligor directly to any of FCI, FAC or any of their respective Affiliates), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Borrower's operating expenses (except pursuant to allocation arrangements that comply with the requirements of subsection (ii) or (iii) of this -------------- ----- Section 5.01(o) or pursuant to the terms of the -------------- Receivables Purchase Agreement);
(ix) not guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate, (either directly or by seeking credit based on the assets of such Affiliate) or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery and a telephone number separate from that of any Affiliate and which telephone number will be answered in its own name, and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of directors in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation and by-laws are duly and validly taken;
(xii) maintain a separate office from the offices of any of its Affiliates and identify such office by a sign in its own name;
(xiii) not advance funds or other assets to, or commit to advance funds or other assets to (other than by way of payments in respect of a Purchase on any Contract Grant Date under the Receivables Purchase Agreement), or accept funds from (other than by way of contributions to capital) FAC or any of its Affiliates for any purpose or transaction (other than in compliance with the provisions of Section 5.02(k) with respect to transactions with Affiliates), or permit FAC or any of its Affiliates to be involved in the management of the Borrower;
(xiv) respond to any inquiries with respect to ownership of a Pledged Contract by stating that it is the owner of such Pledged Contract, and that such Pledged Contract is Granted to the Collateral Agent for the benefit of itself, the Administrative Agent, Triple-A, the Surety, and to the Collateral Agent for the benefit of the L/C Bank;
(xv) on or before March 31 of each year, beginning in 1997, the Borrower shall deliver to the Collateral Agent an Officer's Certificate stating that Borrower has, during the preceding year, observed all of the requisite corporate formalities and conducted its business and operations in such a manner as required for the Borrower to maintain its separate corporate existence from any other entity; and
(xvi) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion described in Section F.1.b. of the List of Closing Documents attached at Exhibit C remain true and correct at all times.
Appears in 1 contract
Separate Identity. The Servicer hereby covenants Borrower acknowledges that the Agent, the LC Issuer and agrees to the Lender are entering into the transactions contemplated by this Agreement in reliance upon the Borrower’s identity as a legal entity that is separate from the Originator. Therefore, from and after the date of execution and delivery of this Agreement, the Borrower shall take all actions required reasonable steps, including, without limitation, all steps that the Agent or the Lender may from time to time reasonably request, to maintain the Issuer's status Borrower’s identity as a separate legal entityentity and to make it manifest to third parties that the Borrower is an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof (other than the Borrower) and not just a division of the Originator or any such Affiliate. Without limiting the foregoinggenerality of the foregoing and in addition to the other covenants set forth herein, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingBorrower will:
(i) Issuer shall hold itself out to the public and conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely own business in its own name (and not as a division of any other Person), and require that its employeesall full-time employees of the Borrower, if any, when conducting its business identify themselves as suchsuch and not as employees of the Originator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Borrower’s employees);
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicerdirectly, from the Issuer's bank accountsBorrower’s own funds, for services provided to the Issuer Borrower by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer Borrower is also an employee, consultant or agent of the ServicerOriginator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between the Issuer Borrower and the Servicer Originator or such Affiliate, as applicable, on a basis which that reflects the respective services rendered to the Issuer Borrower and the ServicerOriginator or such Affiliate, as applicable;
(iii) Issuer shall (A) pay maintain separate stationery, invoices, checks and other business forms in its own incidental administrative costs name;
(iv) conduct all transactions with the Originator and expenses from the Servicer (including, without limitation, any delegation of its own fundsobligations hereunder to the Servicer) strictly on an arm’s-length basis, (B) allocate fairly and reasonably all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other for items of cost and expense shared between the Issuer Borrower and the Servicer, Originator on the basis of actual use to the extent; practicableextent practicable and, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendereduse;
(ivv) Issuer shall at all times have at least two independent directors who satisfy the definition a Board of Independent Director provided in the Certificate Directors consisting of Incorporation, and have at least one officer responsible member that is an Independent Manager;
(vi) observe all organizational formalities as a distinct entity, and ensure that all entity actions relating to (A) the selection, maintenance or replacement of the Independent Manager, (B) the dissolution or liquidation of the Borrower or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving the Borrower, are duly authorized by unanimous vote of its Board of Directors (including the Independent Manager);
(vii) maintain the Borrower’s books and records separate and distinct from those of the Originator and any Affiliate thereof and otherwise in such a manner so that the assets of the Borrower are readily identifiable as its own assets rather than assets of the Originator or any Affiliate thereof;
(viii) prepare its financial statements separately from those of the Originator and insure that any consolidated financial statements of the Parent or any Affiliate thereof that include the Borrower and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating that the Borrower is a separate legal entity and that its assets will be available only to satisfy the claims of the creditors of the Borrower;
(ix) except as herein specifically otherwise provided, maintain the funds and other assets of the Borrower separate from, and not commingled with, those of the Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Borrower alone is the account party, into which the Borrower alone makes deposits and from which the Borrower alone (or the Agent hereunder) has the power to make withdrawals;
(x) pay all of the Borrower’s operating expenses from the Borrower’s own assets (except for managing certain payments by the Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 7.1(i)) and pay its day-to-day own liabilities out of its own funds;
(xi) operate its business and manage activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (A) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (B) the incurrence of obligations under this Agreement, (C) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originator thereunder for the purchase of Receivables from the Originator under the direction Receivables Sale Agreement, and (D) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(xii) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its Certificate of Formation or Limited Liability Company Agreement in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 7.1(i) of this Agreement;
(xiii) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Agent;
(xiv) maintain its entity separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its board assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of directorsthe assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary;
(xv) maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement) and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause the Required Capital Amount to cease to be so maintained;
(xvi) operate its business and activities such that it (A) does not hold itself out as having agreed to guarantee or be obligated for the debts of the Originator or any Affiliate thereof, (B) does not hold out its credit as being available to satisfy the obligations of the Originator or any Affiliate thereof and (C) has not pledged assets for the benefit of the Originator or any Affiliate thereof, except as otherwise permitted under the Transaction Documents; and
(xvii) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued by Xxxxxxx Xxxxx LLP as counsel for the Borrower, in connection with the closing or initial Loan under this Agreement and relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times; and
(xviii) maintain its organizational documents in conformity with this Agreement, such that its organizational documents, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to the Agent of the replacement or appointment of any director that is to serve as an Independent Manager for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that the Borrower certify that the designated Person satisfied the criteria set forth in the definition herein of Independent Manager and the Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of Independent Manager.
Appears in 1 contract
Samples: Receivables Loan Agreement (Arkansas Best Corp /De/)
Separate Identity. The Servicer hereby covenants and agrees to take Take all actions required to maintain the Issuer------------------ Borrower's status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingBorrower shall:
(i) Issuer shall conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as suchsuch and not as employees of any other Affiliate of the Borrower (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Borrower's employees);
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the ServicerSeller, from the IssuerBorrower's bank accounts, for services provided to the Issuer Borrower by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer Borrower is also an employee, consultant or agent of any Affiliate of the ServicerBorrower, allocate the compensation of such employee, consultant or agent between the Issuer Borrower and the Servicer such Affiliate on a basis which reflects the respective services rendered to the Issuer Borrower and such Affiliate (provided that any fees and expenses payable to the ServicerCustodian under the Custodial Agreement shall be the responsibility of the Servicer to be paid out of its Servicing Fee) other than with respect to the services covered under the terms of the Administrative Services Agreement;
(iii) Issuer shall (A) pay its own incidental administrative costs and expenses not covered under the terms of the Administrative Services Agreement, from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer Borrower and any Affiliate, pursuant to the Servicerterms of the Administrative Services Agreement, on the basis of actual use to the extent; practicableextent practicable and, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered, and (C) allocate taxes on the basis set forth in the Tax Sharing Agreement;
(iv) Issuer shall at all times have at least two independent directors who satisfy one "Independent Director", which satisfies the definition of Independent Director provided requirements set forth in Section 4.01(n) hereof and under the Borrower's --------------- Certificate of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statements of each of FAC and FCI have notes to the effect that the Borrower is a separate corporate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders and therefore to any creditors of FAC or FCI, as the case may be;
(vii) not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment which are not material in the aggregate and which have been mistakenly forwarded by an Obligor directly to any of FCI, FAC or any of their respective Affiliates), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Borrower's operating expenses (except pursuant to allocation arrangements that comply with the requirements of subsection (ii) or (iii) of this Section 5.01(o) or pursuant to -------------- --- -------------- the terms of the Receivables Purchase Agreement);
(ix) not guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate, (either directly or by seeking credit based on the assets of such Affiliate) or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery and a telephone number separate from that of any Affiliate and which telephone number will be answered in its own name, and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of directors in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation and by-laws are duly and validly taken;
(xii) maintain a separate office from the offices of any of its Affiliates and identify such office by a sign in its own name;
(xiii) not advance funds or other assets to, or commit to advance funds or other assets to (other than by way of payments in respect of a Purchase on any Contract Grant Date under the Receivables Purchase Agreement), or accept funds from (other than by way of contributions to capital) FAC or any of its Affiliates for any purpose or transaction (other than in compliance with the provisions of Section 5.02(k) with respect to transactions with Affiliates), or -------------- permit FAC or any of its Affiliates to be involved in the management of the Borrower;
(xiv) respond to any inquiries with respect to ownership of a Pledged Contract by stating that it is the owner of such Pledged Contract, and that such Pledged Contract is Granted to the Collateral Agent;
(xv) on or before March 31 of each year, beginning in 1999, the Borrower shall deliver to the Deal Agent an Officer's Certificate stating that Borrower has, during the preceding year, observed all of the requisite corporate formalities and conducted its business and operations in such a manner as required for the Borrower to maintain its separate corporate existence from any other entity; and
(xvi) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Borrower's counsel and described in the List of Closing Documents attached at Exhibit C remain true and correct at all times. --------- (p) Computer Files. Xxxx or cause to be marked each Pledged Contract in its -------------- computer files as described in Section 4.03(b) hereof. --------------
Appears in 1 contract
Separate Identity. The Servicer hereby covenants Borrower acknowledges that the Agent, the LC Issuer and agrees to the Lenders are entering into the transactions contemplated by this Agreement in reliance upon the Borrower’s identity as a legal entity that is separate from each Originator. Therefore, from and after the date of execution and delivery of this Agreement, the Borrower shall take all actions required reasonable steps, including, without limitation, all steps that the Agent or any Lender may from time to time reasonably request, to maintain the Issuer's status Borrower’s identity as a separate legal entityentity and to make it manifest to third parties that the Borrower is an entity with assets and liabilities distinct from those of each Originator and any Affiliates thereof (other than the Borrower) and not just a division of any Originator or any such Affiliate. Without limiting the foregoinggenerality of the foregoing and in addition to the other covenants set forth herein, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingBorrower will:
(i) Issuer shall hold itself out to the public and conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely own business in its own name (and not as a division of any other Person), and require that its employeesall full-time employees of the Borrower, if any, when conducting its business identify themselves as suchsuch and not as employees of any Originator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Borrower’s employees);
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicerdirectly, from the Issuer's bank accountsBorrower’s own funds, for services provided to the Issuer Borrower by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer Borrower is also an employee, consultant or agent of the Servicerany Originator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between the Issuer Borrower and the Servicer such Originator or such Affiliate, as applicable, on a basis which that reflects the respective services rendered to the Issuer Borrower and the Servicersuch Originator or such Affiliate, as applicable;
(iii) Issuer shall (A) pay maintain separate stationery, invoices, checks and other business forms in its own incidental administrative costs name;
(iv) conduct all transactions with the Originators and expenses from the Servicer (including, without limitation, any delegation of its own fundsobligations hereunder to the Servicer) strictly on an arm’s-length basis, (B) allocate fairly and reasonably all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other for items of cost and expense shared between the Issuer Borrower and the Servicer, Originators on the basis of actual use to the extent; practicableextent practicable and, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendereduse;
(ivv) Issuer shall at all times have at least two independent directors who one Independent Manager;
(vi) observe all organizational formalities as a distinct entity, and ensure that all entity actions relating to (A) the selection, maintenance or replacement of the Independent Manager, (B) the dissolution or liquidation of the Borrower or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving the Borrower, are duly authorized by all requisite entity action and, in the case of clauses (B) and (C), by all members of the Borrower and the Independent Manager;
(vii) maintain the Borrower’s books and records separate and distinct from those of any Originator and any Affiliate thereof and otherwise in such a manner so that the assets of the Borrower are readily identifiable as its own assets rather than assets of any Originator or any Affiliate thereof;
(viii) prepare its financial statements separately from those of each Originator and insure that any consolidated financial statements of the Parent or any Affiliate thereof that include the Borrower and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating that the Borrower is a separate legal entity and that its assets will be available only to satisfy the claims of the creditors of the Borrower;
(ix) except as herein specifically otherwise provided, maintain the funds and other assets of the Borrower separate from, and not commingled with, those of any Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Borrower alone is the account party, into which the Borrower alone makes deposits and from which the Borrower alone (or the Agent hereunder) has the power to make withdrawals;
(x) pay all of the Borrower’s operating expenses from the Borrower’s own assets (except for certain payments by any Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 7.1(i)) and pay its own liabilities out of its own funds;
(xi) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (A) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (B) the incurrence of obligations under this Agreement, (C) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originators thereunder for the purchase of Receivables from the Originators under the Receivables Sale Agreement, and (D) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(xii) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its Certificate of Formation or Limited Liability Company Agreement in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 7.1(i) of this Agreement;
(xiii) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Agent;
(xiv) maintain its entity separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary other than with respect to the merger effected February 1, 2015, of ABF Freight Funding LLC and ArcBest Funding LLC;
(xv) refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness that would cause the Required Capital Amount (as defined in the Receivables Sale Agreement) to cease to be maintained;
(xvi) operate its business and activities such that it (A) does not hold itself out as having agreed to guarantee or be obligated for the debts of any Originator or any Affiliate thereof, (B) does not hold out its credit as being available to satisfy the obligations of any Originator or any Affiliate thereof and (C) has not pledged assets for the benefit of any Originator or any Affiliate thereof, except as otherwise permitted under the Transaction Documents;
(xvii) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued by Xxxxxx and Bird LLP as counsel for the Borrower, in connection with the Existing Loan Agreement and relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times; and
(xviii) maintain its organizational documents in conformity with this Agreement, such that its organizational documents, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to the Agent of the replacement or appointment of any director that is to serve as an Independent Manager for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that the Borrower certify that the designated Person satisfied the criteria set forth in the definition herein of Independent Director provided Manager and the Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the Certificate definition herein of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;Independent Manager.
Appears in 1 contract
Separate Identity. The Servicer hereby covenants and agrees to take all ----------------- actions required to maintain the Issuer's status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingshall:
(i) cause Issuer shall to conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such;
(ii) cause Issuer shall to compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer;
(iii) cause Issuer shall to (A) pay its own incidental administrative costs and expenses from its own funds, and (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent; extent practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) cause Issuer shall to at all times have at least two one Independent Member, with at least one independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporationdirector, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directorsmanagers;
(v) cause Issuer to maintain its books and records separate from those of any Affiliate;
(vi) cause Issuer to prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders and therefore to any creditors, as the case may be;
(vii) cause Issuer to not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Issuer's operating expenses;
(ix) not permit Issuer to guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) cause Issuer to maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
(xi) cause Issuer to hold regular meetings of its board of managers in accordance with the provisions of its LLC Agreement and otherwise take such actions as are necessary on its part to ensure that all company procedures required by its LLC Agreement and By-laws are duly and validly taken;
(xii) cause Issuer to respond to any inquires made directly to it with respect to ownership of a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable; and
(xiii) cause Issuer to take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel remain true and correct at all times.
Appears in 1 contract
Samples: Indenture and Servicing Agreement (Creditrust Corp)
Separate Identity. The Servicer hereby covenants Borrower acknowledges that the Agent, the LC Issuer and agrees to the Lender are entering into the transactions contemplated by this Agreement in reliance upon the Borrower’s identity as a legal entity that is separate from each Originator. Therefore, from and after the date of execution and delivery of this Agreement, the Borrower shall take all actions required reasonable steps, including, without limitation, all steps that the Agent or the Lender may from time to time reasonably request, to maintain the Issuer's status Borrower’s identity as a separate legal entityentity and to make it manifest to third parties that the Borrower is an entity with assets and liabilities distinct from those of each Originator and any Affiliates thereof (other than the Borrower) and not just a division of any Originator or any such Affiliate. Without limiting the foregoinggenerality of the foregoing and in addition to the other covenants set forth herein, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingBorrower will:
(i) Issuer shall hold itself out to the public and conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely own business in its own name (and not as a division of any other Person), and require that its employeesall full-time employees of the Borrower, if any, when conducting its business identify themselves as suchsuch and not as employees of any Originator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Borrower’s employees);
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicerdirectly, from the Issuer's bank accountsBorrower’s own funds, for services provided to the Issuer Borrower by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer Borrower is also an employee, consultant or agent of the Servicerany Originator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between the Issuer Borrower and the Servicer such Originator or such Affiliate, as applicable, on a basis which that reflects the respective services rendered to the Issuer Borrower and the Servicersuch Originator or such Affiliate, as applicable;
(iii) Issuer shall (A) pay maintain separate stationery, invoices, checks and other business forms in its own incidental administrative costs name;
(iv) conduct all transactions with the Originators and expenses from the Servicer (including, without limitation, any delegation of its own fundsobligations hereunder to the Servicer) strictly on an arm’s-length basis, (B) allocate fairly and reasonably all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other for items of cost and expense shared between the Issuer Borrower and the Servicer, Originators on the basis of actual use to the extent; practicableextent practicable and, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendereduse;
(ivv) Issuer shall at all times have at least two independent directors who one Independent Manager;
(vi) observe all organizational formalities as a distinct entity, and ensure that all entity actions relating to (A) the selection, maintenance or replacement of the Independent Manager, (B) the dissolution or liquidation of the Borrower or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving the Borrower, are duly authorized by all requisite entity action and, in the case of clauses (B) and (C), by all members of the Borrower and the Independent Manager;
(vii) maintain the Borrower’s books and records separate and distinct from those of any Originator and any Affiliate thereof and otherwise in such a manner so that the assets of the Borrower are readily identifiable as its own assets rather than assets of any Originator or any Affiliate thereof;
(viii) prepare its financial statements separately from those of each Originator and insure that any consolidated financial statements of the Parent or any Affiliate thereof that include the Borrower and that are filed with the Securities and Exchange Commission or any other governmental agency have notes clearly stating that the Borrower is a separate legal entity and that its assets will be available only to satisfy the claims of the creditors of the Borrower;
(ix) except as herein specifically otherwise provided, maintain the funds and other assets of the Borrower separate from, and not commingled with, those of any Originator or any Affiliate thereof and only maintain bank accounts or other depository accounts to which the Borrower alone is the account party, into which the Borrower alone makes deposits and from which the Borrower alone (or the Agent hereunder) has the power to make withdrawals;
(x) pay all of the Borrower’s operating expenses from the Borrower’s own assets (except for certain payments by any Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 7.1(i)) and pay its own liabilities out of its own funds;
(xi) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (A) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (B) the incurrence of obligations under this Agreement, (C) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originators thereunder for the purchase of Receivables from the Originators under the Receivables Sale Agreement, and (D) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(xii) maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its Certificate of Formation or Limited Liability Company Agreement in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 7.1(i) of this Agreement;
(xiii) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of the Agent;
(xiv) maintain its entity separateness such that it does not merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary other than with respect to the merger effected February 1, 2015, of ABF Freight Funding LLC and ArcBest Funding LLC, to which the Lender, LC Issuer and the Agent hereby consent;
(xv) refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness that would cause the Required Capital Amount (as defined in the Receivables Sale Agreement) to cease to be maintained;
(xvi) operate its business and activities such that it (A) does not hold itself out as having agreed to guarantee or be obligated for the debts of any Originator or any Affiliate thereof, (B) does not hold out its credit as being available to satisfy the obligations of any Originator or any Affiliate thereof and (C) has not pledged assets for the benefit of any Originator or any Affiliate thereof, except as otherwise permitted under the Transaction Documents; and
(xvii) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued by Xxxxxx and Bird LLP as counsel for the Borrower, in connection with this Amended and Restated Receivables Loan Agreement and relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times; and
(xviii) maintain its organizational documents in conformity with this Agreement, such that its organizational documents, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to the Agent of the replacement or appointment of any director that is to serve as an Independent Manager for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that the Borrower certify that the designated Person satisfied the criteria set forth in the definition herein of Independent Director provided Manager and the Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the Certificate definition herein of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;Independent Manager.
Appears in 1 contract
Separate Identity. The Servicer Issuer hereby covenants and agrees to take all ----------------- actions required to maintain the Issuer's status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingshall:
(i) Issuer shall conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as suchsuch (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees);
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer;
(iii) Issuer shall (A) pay its own incidental administrative costs and expenses from its own funds, and (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent; extent practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) Issuer shall at all times have at least two one Independent Member, with at least one independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporationdirector, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directorsmanagers;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders and therefore to any creditors, as the case may be;
(vii) not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Issuer's operating expenses;
(ix) not guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of managers in accordance with the provisions of its LLC Agreement and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its LLC Agreement and By-laws are duly and validly taken;
(xii) respond to any inquiries made to it with respect to ownership of a Receivable by stating that it is the owner of such Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable;
(xiii) on or before March 31 of each year, beginning in 2000, the Issuer shall deliver to the Trustee an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite company formalities and conducted its business and operations in such a manner as required for the Issuer to maintain its separate company existence from any other entity; and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel remain true and correct at all times.
Appears in 1 contract
Samples: Indenture and Servicing Agreement (Creditrust Corp)
Separate Identity. The Servicer hereby covenants and agrees to take Take all actions required to maintain the Issuer's Seller’s status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingSeller shall:
(i) Issuer shall conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as suchsuch and not as employees of any other Affiliate of the Seller (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Seller’s employees);
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the ServicerOriginator each calendar quarter, from the Issuer's Seller’s bank accounts, for services provided to the Issuer Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer Seller is also an employee, consultant or agent of any Affiliate of the ServicerSeller, allocate the compensation of such employee, consultant or agent between the Issuer Seller and the Servicer such Affiliate on a basis which reflects the respective services rendered to the Issuer Seller and the Servicersuch Affiliate;
(iii) Issuer shall (A) pay its own incidental administrative costs operating expenses and expenses liabilities from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants charges and agents, and reasonable legal and auditing expensesrent for office space) which are not reflected in the Servicing Fee, and other for items of cost and expense shared between the Issuer Seller and the Servicer, any Affiliate on the basis of actual use to the extent; practicableextent practicable and, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or and allocate taxes on the value basis of services renderedtheir respective incomes in accordance with applicable federal regulations;
(iv) Issuer shall at all times have at least two independent directors who satisfy one “Independent Manager”, as defined in and as required under the definition of Independent Director provided in the Certificate of Incorporation, Seller’s limited liability company agreement and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directorsmanagers;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its other Affiliates and insure that any consolidated financial statements of the Originator have notes to the effect that the Seller is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders and therefore to any creditors of the Originator;
(vii) use its best efforts not to commingle its funds or other assets with those of any other Affiliate, and not to hold its assets in any manner that would create an appearance that such assets belong to any other Affiliate, and not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals;
(viii) not permit any Affiliate to pay its operating expenses (except pursuant to allocation arrangements that comply with the requirements of subsection (ii) or (iii) of this Section 5.01(l) or pursuant to the terms of the Sale Agreement);
(ix) not guarantee any obligation of any Affiliate nor (to the extent that the Seller has the legal power to prevent such) have any of its obligations guaranteed by any such Affiliate, (either directly or by seeking credit based on the assets of such Affiliate) or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery and a telephone number separate from that of any Affiliate and which telephone number will be answered in its own name, and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold meetings of its members and/or board of managers in accordance with the provisions of its limited liability company agreement and otherwise take such actions as are necessary on its part to ensure that all organizational procedures required by its certificate of formation and limited liability company agreement are duly and validly taken;
(xii) maintain a separate office from the offices of any of its Affiliates and identify such office by a sign in its own name;
(xiii) pay dividends or other distributions to its members only if (A) no other dividend or distribution has been paid during the calendar month in which such amount is paid, (B) such dividend or distribution has been duly authorized by its board of managers in accordance with applicable law and (C) its net worth, determined immediately after giving effect to such dividend or distribution is at least $2,000,000; and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion concerning certain bankruptcy matters to be delivered by counsel for the Seller pursuant to Section 3.01(a)(ix) remain true and correct at all times.
Appears in 1 contract
Separate Identity. The Servicer hereby covenants and agrees to take all actions required to maintain the Issuer's status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingshall:
(i) cause Issuer shall to conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such;
(ii) cause Issuer shall to compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer;
(iii) cause Issuer shall to (A) pay its own incidental administrative costs and expenses from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent; extent practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) cause Issuer shall to at all times have at least two one independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporationmember, with at least one independent director, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directorsmanagers;
(v) cause Issuer to maintain its books and records separate from those of any Affiliate;
(vi) cause Issuer to prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders and therefore to any creditors, as the case may be;
(vii) cause Issuer to not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Issuer's operating expenses;
(ix) not permit Issuer to guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) cause Issuer to maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of managers in accordance with the provisions of its LLC Agreement and otherwise take such actions as are necessary on its part to ensure that all company procedures required by its LLC Agreement and By-laws are duly and validly taken;
(xii) cause Issuer to respond to any inquires made directly to it with respect to ownership of a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable; and
(xiii) cause Issuer to take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel remain true and correct at all times.
Appears in 1 contract
Samples: Indenture and Servicing Agreement (Creditrust Corp)
Separate Identity. The Servicer Issuer hereby covenants and agrees to take all actions required to maintain the Issuer's status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingshall:
(i) Issuer shall conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as suchsuch (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees);
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer;
(iii) Issuer shall (A) pay its own incidental administrative costs and expenses from its own funds, and (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent; extent practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) Issuer shall at all times have at least two one Independent Member, with at least one independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporationdirector, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directorsmanagers;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders and therefore to any creditors, as the case may be;
(vii) not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposited into the Collection Account in accordance with this Agreement), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Issuer's operating expenses;
(ix) not guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of managers in accordance with the provisions of its LLC Agreement and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its LLC Agreement and By-laws are duly and validly taken;
(xii) respond to any inquiries made to it with respect to ownership of a Receivable by stating that it is the owner of such Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable;
(xiii) on or before March 31 of each year, beginning in 2000, the Issuer shall deliver to the Trustee and each of the Noteholders an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite company formalities and conducted its business and operations in such a manner as required for the Issuer to maintain its separate company existence from any other entity; and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel remain true and correct at all times.
Appears in 1 contract
Samples: Indenture and Servicing Agreement (Creditrust Corp)
Separate Identity. The Servicer Issuer hereby covenants and agrees to take all actions required to maintain the Issuer's status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingshall:
(i) Issuer shall conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as suchsuch (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees);
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer;
(iii) Issuer shall (A) pay its own incidental administrative costs and expenses from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent; extent practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) Issuer shall at all times have at least two one independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporationmember, with at least one independent director, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directorsmanagers;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders and therefore to any creditors, as the case may be;
(vii) not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Issuer's operating expenses;
(ix) not guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of managers in accordance with the provisions of its LLC Agreement and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its LLC Agreement and By-laws are duly and validly taken;
(xii) respond to any inquires with respect to ownership of a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable;
(xiii) on or before March 31 of each year, beginning in 1999, the Issuer shall deliver to the Trustee an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite company formalities and conducted its business and operations in such a manner as required for the Issuer to maintain its separate company existence from any other entity; and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel remain true and correct at all times.
Appears in 1 contract
Samples: Indenture and Servicing Agreement (Creditrust Corp)
Separate Identity. The Servicer hereby covenants and agrees to take all actions required to maintain the Issuer's status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer not satisfying any of the followingshall:
(i) cause Issuer shall to conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such;
(ii) cause Issuer shall to compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer;
(iii) cause Issuer shall to (A) pay its own incidental administrative costs and expenses from its own funds, and (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent; extent practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) cause Issuer shall to at all times have at least two one Independent Member, with at least one independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporationdirector, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directorsmanagers;
(v) cause Issuer to maintain its books and records separate from those of any Affiliate;
(vi) cause Issuer to prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders and therefore to any creditors, as the case may be;
(vii) cause Issuer to not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposited into the Collection Account in accordance with this Agreement), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Issuer's operating expenses;
(ix) not permit Issuer to guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) cause Issuer to maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
(xi) cause Issuer to hold regular meetings of its board of managers in accordance with the provisions of its LLC Agreement and otherwise take such actions as are necessary on its part to ensure that all company procedures required by its LLC Agreement and By-laws are duly and validly taken;
(xii) cause Issuer to respond to any inquires made directly to it with respect to ownership of a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable; and
(xiii) cause Issuer to take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel remain true and correct at all times.
Appears in 1 contract
Samples: Indenture and Servicing Agreement (Creditrust Corp)
