Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a division of AFC or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order that: (i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities; (ii) Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director; (iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof; (iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee; (v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees; (vi) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments; (vii) The Seller will have its own separate mailing address and stationery; (viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof; (ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable; (x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof; (xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof; (xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and (xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 6 contracts
Sources: Receivables Purchase Agreement (KAR Auction Services, Inc.), Receivables Purchase Agreement (KAR Auction Services, Inc.), Receivables Purchase Agreement (KAR Auction Services, Inc.)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a division of AFC or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order thatThe Club Trustee shall:
(i) Maintain its own deposit account or accounts, separate from those of any Affiliate, with commercial banking institutions. The Seller funds of the Club Trustee will not be a limited purpose corporation whose primary activities are restricted in its articles diverted to any other Person or for other than trust or corporate uses of incorporation to purchasing Receivables from the OriginatorClub Trustee, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;applicable.
(ii) Not less than one member of Seller’s Board of Directors (Ensure that, to the “Independent Directors”) shall be individuals who are not direct, indirect extent that it shares the same officers or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or other employees as any of its stockholders, beneficiaries or Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iii) Ensure that, to the extent that the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) jointly do business with vendors or service providers or share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. The Seller’s Board To the extent that the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) do business with vendors or service providers when the goods and services provided are partially for the benefit of Directors shall not approve, or take any other action Person, the costs incurred in so doing shall be fairly allocated to cause or among such entities for whose benefit the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcygoods and services are provided, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in and each case the Independent Directors such entity shall approve the taking bear its fair share of such action in writing prior to the taking costs. All material transactions between Club Trustee and any of such action. The Independent Directors’ fiduciary duty its Affiliates shall be to only on an arms' length basis.
(iv) To the Seller (extent that the Club Trustee and creditors) and not to the Seller’s shareholders in respect any of any decision of the type described its stockholders, beneficiaries or Affiliates have offices in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Sellersame location, there shall be selected a replacement Independent Director who fair and appropriate allocation of overhead costs among them, and each such entity shall not be an individual within the proscriptions bear its fair share of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;expenses.
(v) The Seller will contract Conduct its affairs strictly in accordance with the Servicer to perform for the Seller all operations required on a daily basis to service Club Trust Agreement or its Receivables. The Seller will pay the Servicer a monthly fee based on the level amended and restated articles of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extentincorporation, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services renderedapplicable, and otherwise on a basis reasonably related to the actual use or the value of services renderedobserve all necessary, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution appropriate and delivery of the Transaction Documentscustomary corporate formalities, including, without limitationbut not limited to, legal holding all regular and other fees;
(vi) The Seller’s operating expenses will not special stockholders', trustees' and directors' meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereoftaken, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access maintaining accurate and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (orseparate books, in the absence of such increaserecords and accounts, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereofincluding, but the Seller shall notnot limited to, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator payroll and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the otherintercompany transaction accounts.
Appears in 5 contracts
Sources: Indenture (Bluegreen Corp), Indenture (Bluegreen Corp), Indenture (Bluegreen Corp)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a division of AFC or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order thatSuch Transferor shall:
(i) The Seller will be Maintain in full effect its existence, rights and franchises as a limited purpose liability company under the laws of the state of its formation or as a corporation whose primary activities are restricted under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in its articles each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of incorporation to purchasing this Agreement and the applicable Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables Purchase Agreement and conducting such each other activities as it deems instrument or agreement necessary or appropriate to carry out its primary activities;proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Not less than one member Except as provided herein, maintain its own deposit, securities and other account or accounts, separate from those of Seller’s Board any Affiliate of Directors (the “Independent Directors”) shall be individuals who are not directsuch Transferor, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliateswith financial institutions. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking funds of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses Transferor will not be paid diverted to any other Person or for other than the company use of such Transferor, and, except as may be expressly permitted by Originator this Agreement or any Affiliate thereof unless the Seller applicable Receivables Purchase Agreement, the funds of such Transferor shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of any other Person.
(iii) Ensure that, to the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts extent that it shares the same officers or other depository accounts employees as any of its members or other Affiliates, the salaries of and the expenses related to which providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the Originator salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any Affiliate thereof other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(other than AFC in v) Ensure that all material transactions between such Transferor and any of its capacity as Servicer) has independent access Affiliates shall be only on an arm’s-length basis and shall not pool be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the Seller’s foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the relevant Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds at any time with any funds or loan money to such Transferor, and no Affiliate of the Originator or any Affiliate thereof;such Transferor will otherwise guaranty debts of such Transferor.
(xii) The Seller shall Other than organizational expenses and as expressly provided herein, pay to the Originator the marginal increase all expenses, indebtedness and other obligations incurred by it using its own funds.
(or, in the absence of such increase, the market amount of its portionxiii) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or Not enter into an agreement to be namedany guaranty, as a direct or contingent beneficiary or loss payee, under any such insurance policyotherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any amounts payable due to occurrences or events related to the Originator or obligation of any Affiliate thereof (other than the Seller); andof such Transferor nor shall such Transferor make any loans to any Person.
(xiiixiv) The Seller will maintain arm’s length relationships Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts effect of the other or transactions between such Transferor and such Affiliate and also state that the decisions or actions respecting the daily business and affairs assets of such Transferor are not available to pay creditors of the otherAffiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 4 contracts
Sources: Pooling and Servicing Agreement (American Express Credit Account Master Trust), Pooling and Servicing Agreement (American Express Receivables Financing Corp Iv LLC), Pooling and Servicing Agreement (American Express Receivables Financing Corp Iv LLC)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a division of AFC or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order thatSuch Transferor shall:
(i) The Seller will be Maintain in full effect its existence, rights and franchises as a limited purpose liability company under the laws of the state of its formation or as a corporation whose primary activities are restricted under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in its articles each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of incorporation to purchasing this Agreement and the applicable Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables Purchase Agreement and conducting such each other activities as it deems instrument or agreement necessary or appropriate to carry out its primary activities;proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Not less than one member Except as provided herein, maintain its own deposit, securities and other account or accounts, separate from those of Seller’s Board any Affiliate of Directors (the “Independent Directors”) shall be individuals who are not directsuch Transferor, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliateswith financial institutions. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking funds of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses Transferor will not be paid diverted to any other Person or for other than the company use of such Transferor, and, except as may be expressly permitted by Originator this Agreement or any Affiliate thereof unless the Seller applicable Receivables Purchase Agreement, the funds of such Transferor shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of any other Person.
(iii) Ensure that, to the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts extent that it shares the same officers or other depository accounts employees as any of its members or other Affiliates, the salaries of and the expenses related to which providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the Originator salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any Affiliate thereof other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(other than AFC in v) Ensure that all material transactions between such Transferor and any of its capacity as Servicer) has independent access Affiliates shall be only on an arm's-length basis and shall not pool be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members' and directors' meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members' and directors' meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, "Independent Director" shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Sellerforegoing); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 4 contracts
Sources: Pooling and Servicing Agreement (American Express Receivables Financing Corp Ii), Pooling and Servicing Agreement (American Express Credit Account Master Trust), Pooling and Servicing Agreement (American Express Credit Account Master Trust)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take Take all reasonable steps (including, without limitation, all steps that the Administrative Agent or any Facility Agent may from time to continue time reasonably request) to maintain the SellerBorrower’s identity as a separate legal entity from the Servicer and to make it apparent manifest to third Persons parties that the Seller Borrower is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, Transaction Party and is not a division of AFC or any each other PersonAffiliate thereof. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IVforegoing, the Seller and AFC shall take such actions as shall be required in order thatBorrower shall:
(i) The Seller will be a limited purpose corporation liability company whose primary activities are restricted in its articles of incorporation limited liability company agreement to (A) purchasing Receivables from or otherwise acquiring, owning, holding, granting security interests in Pool Receivables, the OriginatorRelated Security, the Collections and the other Collateral with respect thereto, (B) entering into agreements for the selling and servicing of such the Pool Receivables, selling undivided interests in such Receivables and (C) conducting such other activities as it deems necessary are related or appropriate incidental to carry out its primary and necessary, convenient or advisable for the accomplishment of the foregoing activities;
(ii) Not less not engage in any business or activity, or incur any Indebtedness or liability, other than as expressly permitted by the Facility Documents;
(iii) at all times maintain at least one member of Seller’s Board of Directors independent manager (the “Independent DirectorsManager”) ), who shall be individuals an individual who are (A) is not, and has not at any time during the five-year period prior to his or her appointment as Independent Manager been, a direct, indirect or beneficial stockholdersowner, officersemployee, directorsdirector, employeesstockholder, affiliatesmember, associatespartner, customers attorney or suppliers counsel, officer, customer or supplier of the Performance Guarantor, the Servicer, any Originator or any their respective Affiliates (other than his or her service as an independent manager or in a similar capacity of any such Person), (B) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) shall not at any time serve as a trustee in bankruptcy for any Transaction Party or any of their respective other Affiliates. The Seller;
(iv) maintain the requirement that the Borrower’s limited liability company agreement at all times provide (A) that the Borrower’s Board of Directors Managers (as defined in its limited liability company agreement) shall not approve, or take any other action to cause the commencement of filing of, a voluntary case or other proceeding bankruptcy petition with respect to the Seller under any applicable bankruptcyBorrower unless the Board of Managers, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case including the Independent Directors Manager (as defined in its limited liability company agreement), shall approve the taking of such action in writing prior to before the taking of such action. The Independent Directors’ fiduciary duty shall , and (B) that such provision cannot be to amended without the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision unanimous written consent of the type described in Board of Managers, including the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing FeeManager;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service maintain (A) its Receivables. The Seller will pay the Servicer a monthly fee based on the level assets and transactions separately from those of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator other Transaction Party or any Affiliate thereof which are not reflected and reflect such assets and transactions in the Servicing Fee. To the extent, if any, that the Seller financial statements separate and the Originator distinct from those of any other Transaction Party or any Affiliate thereof share items and evidence such assets and transactions by appropriate entries in books and records separate and distinct from those of expenses not reflected in any other Transaction Party or any Affiliate thereof and (B) records of all intercompany debits and credits and transfers of funds made by the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical Originators on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other feesits behalf;
(vi) The Seller’s operating expenses will not be paid by Originator (A) prepare its unaudited financial statements separately from those of any other Transaction Party or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for and (B) insure that any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those consolidated financial statements of the Originator any other Transaction Party or any Affiliate thereof;
(ix) Any financial statements thereof that are filed with the SEC or any other governmental agency or are furnished to any creditors of the Originator any other Transaction Party or KAR which are consolidated to any Affiliate thereof will include the Seller will contain detailed notes clearly stating that the Seller Borrower is a separate corporate entity and has sold ownership interests that its assets are available first and foremost to satisfy the claims of the creditors of the Borrower;
(vii) maintain an arm’s length relationship with unaffiliated parties, and not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(viii) pay its own operating expenses and liabilities, including the allocated expenses of services provided by employees of any of its Affiliates, if any, only out of its own funds;
(ix) conduct its business in its own name and from a clearly identified office space separate from the office space of its Affiliates, which may be located in the Seller’s accounts receivablesame facility as the offices of one or more of its Affiliates. Clearly identify its offices, if any, as its offices and, to the extent that the Borrower and its Affiliates have offices in the same location, allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including services performed by an employee of an Affiliate;
(x) The Seller’s assets will be maintained in at all times hold itself out to the public under its own name as a manner that facilitates their identification legal and segregation economic entity separate from those of the Originator any Person, and any Affiliate thereofstrictly comply with all organizational formalities to maintain its separate existence;
(xi) The Seller will strictly have stationery and other business forms and a telephone number separate from that of NRG Retail LLC or its Affiliates;
(xii) maintain adequate capital and a sufficient number of employees, if any employees are so needed, in light of its contemplated business purposes, transactions and liabilities and in order to pay its debts as they become due;
(xiii) cause its Board of Directors to meet at least annually or act pursuant to written consent, make and retain minutes of such meetings and otherwise observe corporate all limited liability company formalities in as a distinct entity;
(xiv) not hold out its dealings with credit or assets as being available to satisfy the Originator and obligations of any other Person nor pledge its assets for the benefit of any other Person (except for Permitted Liens) nor make any intercompany loans to any Affiliate thereofof the Borrower nor accept any intercompany loans from any Affiliate of the Borrower (except as permitted by the Facility Documents, and funds including the Subordinated Note);
(xv) not incur, create or assume any indebtedness, or guarantee the indebtedness of any other Person, other than as expressly permitted under the Facility Documents;
(xvi) not maintain a joint account with any other Person or otherwise commingle its assets with assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall other Person and, except as otherwise contemplated in Section 2.06, not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or is an account party, into which any Affiliate thereofmakes deposits or from which any Affiliate has the power to make withdrawals except as otherwise contemplated hereunder or under the Receivables Sale Agreement with respect to its or the Servicer’s administration of Collections;
(xiixvii) The Seller shall pay maintain its assets in such a manner that it will not be costly or difficult to the Originator the marginal increase segregate, ascertain or identify its individual assets from those of any other Person;
(or, xviii) not direct or participate in the absence management of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller)Transaction Party’s operations; and
(xiiixix) The Seller will maintain arm’s length relationships take all other actions reasonably necessary on its part to operate its business and perform its obligations under the Facility Documents in a manner consistent with the Originator factual assumptions described in the legal opinions with respect to non-consolidation or true sale matters of Shearman & Sterling LLP and any Affiliate thereof. The Originator White & Case LLP delivered to the Administrative Agent and the Facility Agents pursuant to Section 3.01 hereof, or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the otherback-up certificates related thereto.
Appears in 4 contracts
Sources: Receivables Loan and Servicing Agreement (NRG Energy, Inc.), Receivables Loan and Servicing Agreement (NRG Energy, Inc.), Receivables Loan and Servicing Agreement (NRG Energy, Inc.)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a division of AFC or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order thatThe Club Trustee shall:
(i) maintain its own deposit account or accounts, separate from those of any Affiliate, with commercial banking institutions. The Seller funds of the Club Trustee will not be a limited purpose corporation whose primary activities are restricted in its articles diverted to any other Person or for other than trust or corporate uses of incorporation to purchasing Receivables from the OriginatorClub Trustee, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;applicable.
(ii) Not less than one member of Seller’s Board of Directors (ensure that, to the “Independent Directors”) shall be individuals who are not direct, indirect extent that it shares the same officers or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or other employees as any of its stockholders, beneficiaries or Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iii) ensure that, to the extent that the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) jointly do business with vendors or service providers or share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. The Seller’s Board To the extent that the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) do business with vendors or service providers when the goods and services provided are partially for the benefit of Directors shall not approve, or take any other action Person, the costs incurred in so doing shall be fairly allocated to cause or among such entities for whose benefit the commencement goods and services are provided, and each such entity shall bear its fair share of a voluntary case or other proceeding with respect such costs. All material transactions between Club Trustee and any of its Affiliates shall be only on an arms’ length basis.
(iv) to the Seller under extent that the Club Trustee and any applicable bankruptcyof its stockholders, insolvency, reorganization, debt arrangement, dissolution beneficiaries or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described Affiliates have offices in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Sellersame location, there shall be selected a replacement Independent Director who fair and appropriate allocation of overhead costs among them, and each such entity shall not be an individual within the proscriptions bear its fair share of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;expenses.
(v) The Seller will contract conduct its affairs strictly in accordance with the Servicer to perform for the Seller all operations required on a daily basis to service Club Trust Agreement or its Receivables. The Seller will pay the Servicer a monthly fee based on the level amended and restated articles of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extentincorporation, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services renderedapplicable, and otherwise on a basis reasonably related to the actual use or the value of services renderedobserve all necessary, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution appropriate and delivery of the Transaction Documentscustomary corporate formalities, including, without limitationbut not limited to, legal holding all regular and other fees;
(vi) The Seller’s operating expenses will not special stockholders’, trustees’ and directors’ meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereoftaken, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access maintaining accurate and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (orseparate books, in the absence of such increaserecords and accounts, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereofincluding, but the Seller shall notnot limited to, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator payroll and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the otherintercompany transaction accounts.
Appears in 3 contracts
Sources: Loan Sale and Servicing Agreement (Bluegreen Corp), Loan Sale and Servicing Agreement (Bluegreen Corp), Indenture (Bluegreen Corp)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a division of AFC or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order thatThe Club Trustee shall:
(i) maintain its own deposit account or accounts, separate from those of any Affiliate, with commercial banking institutions. The Seller funds of the Club Trustee will not be a limited purpose corporation whose primary activities are restricted in its articles diverted to any other Person or for other than trust or corporate uses of incorporation to purchasing Receivables from the OriginatorClub Trustee, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;applicable.
(ii) Not less than one member of Seller’s Board of Directors (ensure that, to the “Independent Directors”) shall be individuals who are not direct, indirect extent that it shares the same officers or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or other employees as any of its stockholders, beneficiaries or Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iii) ensure that, to the extent that the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) jointly do business with vendors or service providers or share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. The Seller’s Board To the extent that the Club Trustee and the Servicer (together with their respective shareholders or Affiliates) do business with vendors or service providers when the goods and services provided are partially for the benefit of Directors shall not approve, or take any other action Person, the costs incurred in so doing shall be fairly allocated to cause or among such entities for whose benefit the commencement goods and services are provided, and each such entity shall bear its fair share of a voluntary case or other proceeding with respect such costs. All material transactions between Club Trustee and any of its Affiliates shall be only on an arms’ length basis.
(iv) to the Seller under extent that the Club Trustee and any applicable bankruptcyof its stockholders, insolvency, reorganization, debt arrangement, dissolution beneficiaries or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described Affiliates have offices in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Sellersame location, there shall be selected a replacement Independent Director who fair and appropriate allocation of overhead costs among them, and each such entity shall not be an individual within the proscriptions bear its fair share of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;expenses.
(v) The Seller will contract conduct its affairs strictly in accordance with the Servicer to perform for the Seller all operations required on a daily basis to service Club Trust Agreement or its Receivables. The Seller will pay the Servicer a monthly fee based on the level amended and restated articles of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extentincorporation, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services renderedapplicable, and otherwise on a basis reasonably related to the actual use or the value of services renderedobserve all necessary, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution appropriate and delivery of the Transaction Documentscustomary corporate formalities, including, without limitationbut not limited to, legal holding all regular and other fees;
(vi) The Seller’s operating expenses will not special shareholders’, trustees’ and directors’ meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereoftaken, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access maintaining accurate and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (orseparate books, in the absence of such increaserecords and accounts, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereofincluding, but the Seller shall notnot limited to, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator payroll and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the otherintercompany transaction accounts.
Appears in 3 contracts
Sources: Indenture (Bluegreen Corp), Indenture (Bluegreen Corp), Indenture (Bluegreen Corp)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasersshall: ----------------------------
(i) Maintain its own deposit account or accounts, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFCany Affiliate, with commercial banking institutions. The funds of Seller will not be diverted to any other Person or for other than corporate uses of Seller.
(ii) Ensure that, to the extent that it shares the same officers or other employees as any of its stockholders or Affiliates, the Originator salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iii) Ensure that, to the extent that it jointly contracts with any of its stockholders or Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that Seller contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and is not a division services are provided, and each such entity shall bear its fair share of AFC or any such costs. All material transactions (other Person. Without limiting than this Agreement and the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (aReceivables Purchase Agreement) of this Exhibit IV, the between Seller and AFC shall take such actions as any of its Affiliates shall be required in order that:only on an arm's length basis.
(iiv) The Seller will be Maintain a limited purpose corporation whose primary activities are restricted in principal executive and administrative office through which its articles of incorporation to purchasing Receivables business is conducted separate from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any those of its Affiliates. The Seller’s Board To the extent that Seller and any of Directors shall not approve, its stockholders or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described Affiliates have offices in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Sellersame location, there shall be selected a replacement Independent Director who fair and appropriate allocation of overhead costs among them, and each such entity shall not be an individual within the proscriptions bear its fair share of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;expenses.
(v) The Seller will contract Conduct its affairs strictly in accordance with the Servicer to perform for the Seller its Certificate of Incorporation and observe all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller necessary, appropriate and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documentscustomary corporate formalities, including, without limitationbut not limited to, legal holding all regular and other fees;
(vi) The Seller’s operating expenses will not special stockholders' and directors' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereoftaken, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access maintaining accurate and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (orseparate books, in the absence of such increaserecords and accounts, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereofincluding, but the Seller shall notnot limited to, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator payroll and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the otherintercompany transaction accounts.
Appears in 3 contracts
Sources: Transfer and Servicing Agreement (Spiegel Master Trust), Transfer and Servicing Agreement (Spiegel Master Trust), Pooling and Servicing Agreement (Spiegel Credit Corp Iii)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take Take all reasonable steps (including, without limitation, all steps that the Administrative Agent or any Facility Agent may from time to continue time reasonably request) to maintain the SellerBorrower’s identity as a separate legal entity from the Servicer and to make it apparent manifest to third Persons parties that the Seller Borrower is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, Transaction Party and is not a division of AFC or any each other PersonAffiliate thereof. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IVforegoing, the Seller and AFC shall take such actions as shall be required in order thatBorrower shall:
(i) The Seller will be a limited purpose corporation liability company whose primary activities are restricted in its articles of incorporation limited liability company agreement to (A) purchasing Receivables from or otherwise acquiring, owning, holding, granting security interests in Pool Receivables, the OriginatorRelated Security, the Collections and the other Collateral with respect thereto, (B) entering into agreements for the selling and servicing of such the Pool Receivables, selling undivided interests in such Receivables and (C) conducting such other activities as it deems necessary are related or appropriate incidental to carry out its primary and necessary, convenient or advisable for the accomplishment of the foregoing activities;
(ii) Not less not engage in any business or activity, or incur any Indebtedness or liability, other than as expressly permitted by the Facility Documents;
(iii) at all times maintain at least one member of Seller’s Board of Directors independent manager (the “Independent DirectorsManager”) ), who shall be individuals an individual who are (A) is not, and has not at any time during the five-year period prior to his or her appointment as Independent Manager been, a direct, indirect or beneficial stockholdersowner, officersemployee, directorsdirector, employeesstockholder, affiliatesmember, associatespartner, customers attorney or suppliers counsel, officer, customer or supplier of the Performance Guarantor, the Servicer, any Originator or any their respective Affiliates (other than his or her service as an independent manager or in a similar capacity of any such Person), (B) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) shall not at any time serve as a trustee in bankruptcy for any Transaction Party or any of their respective other Affiliates. The Seller;
(iv) maintain the requirement that the Borrower’s limited liability company agreement at all times provide (A) that the Borrower’s Board of Directors Managers (as defined in its limited liability company agreement) shall not approve, or take any other action to cause the commencement of filing of, a voluntary case or other proceeding bankruptcy petition with respect to the Seller under any applicable bankruptcyBorrower unless the Board of Managers, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case including the Independent Directors Manager (as defined in its limited liability company agreement), shall approve the taking of such action in writing prior to before the taking of such action. The Independent Directors’ fiduciary duty shall , and (B) that such provision cannot be to amended without the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision unanimous written consent of the type described in Board of Managers, including the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing FeeManager;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service maintain (A) its Receivables. The Seller will pay the Servicer a monthly fee based on the level assets and transactions separately from those of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator other Transaction Party or any Affiliate thereof which are not reflected and reflect such assets and transactions in the Servicing Fee. To the extent, if any, that the Seller financial statements separate and the Originator distinct from those of any other Transaction Party or any Affiliate thereof share items and evidence such assets and transactions by appropriate entries in books and records separate and distinct from those of expenses not reflected in any other Transaction Party or any Affiliate thereof and (B) records of all intercompany debits and credits and transfers of funds made by the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical Originators on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other feesits behalf;
(vi) The Seller’s operating expenses will not be paid by Originator (A) prepare its unaudited financial statements separately from those of any other Transaction Party or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for and (B) insure that any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those consolidated financial statements of the Originator any other Transaction Party or any Affiliate thereof;
(ix) Any financial statements thereof that are filed with the SEC or any other governmental agency or are furnished to any creditors of the Originator any other Transaction Party or KAR which are consolidated to any Affiliate thereof will include the Seller will contain detailed notes clearly stating that the Seller Borrower is a separate corporate entity and has sold ownership interests that its assets are available first and foremost to satisfy the claims of the creditors of the Borrower;
(vii) maintain an arm’s length relationship with unaffiliated parties, and not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(viii) pay its own operating expenses and liabilities, including the allocated expenses of services provided by employees of any of its Affiliates, if any, only out of its own funds;
(ix) conduct its business in its own name and from a clearly identified office space separate from the office space of its Affiliates, which may be located in the Seller’s accounts receivablesame facility as the offices of one or more of its Affiliates. Clearly identify its offices, if any, as its offices and, to the extent that the Borrower and its Affiliates have offices in the same location, allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including services performed by an employee of an Affiliate;
(x) The Seller’s assets will be maintained in at all times hold itself out to the public under its own name as a manner that facilitates their identification legal and segregation economic entity separate from those of the Originator any Person, and any Affiliate thereofstrictly comply with all organizational formalities to maintain its separate existence;
(xi) The Seller will strictly have stationery and other business forms and a telephone number separate from that of NRG Retail LLC or its Affiliates;
(xii) maintain adequate capital and a sufficient number of employees, if any employees are so needed, in light of its contemplated business purposes, transactions and liabilities and in order to pay its debts as they become due;
(xiii) cause its Board of Directors to meet at least annually or act pursuant to written consent, make and retain minutes of such meetings and otherwise observe corporate all limited liability company formalities in as a distinct entity;
(xiv) not hold out its dealings with credit or assets as being available to satisfy the Originator and obligations of any other Person nor pledge its assets for the benefit of any other Person (except for Permitted Liens) nor make any intercompany loans to any Affiliate thereofof the Borrower nor accept any intercompany loans from any Affiliate of the Borrower (except as permitted by the Facility Documents, and funds including the Subordinated Note);
(xv) not incur, create or assume any indebtedness, or guarantee the indebtedness of any other Person, other than as expressly permitted under the Facility Documents;
(xvi) not maintain a joint account with any other Person or otherwise commingle its assets with assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall other Person and, except as otherwise contemplated in Section 2.06, not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or is an account party, into which any Affiliate thereofmakes deposits or from which any Affiliate has the power to make withdrawals except as otherwise contemplated hereunder or under the Receivables Sale Agreement with respect to its or the Servicer’s administration of Collections;
(xiixvii) The Seller shall pay maintain its assets in such a manner that it will not be costly or difficult to the Originator the marginal increase segregate, ascertain or identify its individual assets from those of any other Person;
(or, xviii) not direct or participate in the absence management of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller)Transaction Party’s operations; and
(xiiixix) The Seller will maintain arm’s length relationships take all other actions reasonably necessary on its part to operate its business and perform its obligations under the Facility Documents in a manner consistent with the Originator factual assumptions described in the legal opinions with respect to non-consolidation or true sale matters of Shearman & Sterling LLP delivered to the Administrative Agent and any Affiliate thereof. The Originator the Facility Agents pursuant to Section 3.01 hereof, or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the otherback-up certificates related thereto.
Appears in 3 contracts
Sources: Receivables Loan and Servicing Agreement (NRG Energy, Inc.), Receivables Loan and Servicing Agreement (NRG Energy, Inc.), Receivables Loan and Servicing Agreement (NRG Energy, Inc.)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a division of AFC or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order thatThe Transferor shall:
(i) The Seller will be Maintain in full effect its existence, rights and franchises as a limited purpose corporation whose primary activities are restricted liability company under the laws of the state of its formation and will obtain and preserve its qualification to do business in its articles each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of incorporation to purchasing this Agreement and the Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables Purchase Agreement and conducting such each other activities as it deems instrument or agreement necessary or appropriate to carry out its primary activities;ensure that proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Not less than one member Except as provided in this Agreement or the Servicing Agreement, maintain its own deposit, securities and other account or accounts, separate from those of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers any Affiliate of the Originator or any of its AffiliatesTransferor, with financial institutions. The Seller’s Board funds of Directors shall the Transferor will not approve, or take be diverted to any other action to cause Person, and, except as may be expressly permitted by this Agreement, the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar lawServicing Agreement, or the appointment of or taking possession byReceivables Purchase Agreement, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision funds of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there Transferor shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of any other Person.
(iii) Ensure that, to the Originator extent that it shares the same officers or other employees as any of its members or other Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that the Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(v) Ensure that all material transactions between the Transferor and any of its Affiliates shall be only on an arm’s-length basis and shall not be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that the Transferor and any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any natural person who, for the five-year period prior to his or her appointment as Independent Director has not been, and during the continuation of his or her service as Independent Director is not: (x) an employee, director, stockholder, partner, agent, consultant, advisor, attorney, accountant or officer of the Transferor or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof of its Affiliates (other than AFC in its his or her service as an Independent Director or other similar capacity as Servicer) has independent access and shall not pool and/or Special Member of the Transferor or any of the Seller’s funds at any time with any funds such Affiliates); (y) a customer or supplier of the Originator Transferor or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof Affiliates (other than an Independent Director provided by a corporate services company that provides independent directors in the Sellerordinary course of its business); and
or (xiiiz) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts member of the other immediate family of a person described in clause (x) or the decisions or actions respecting the daily business and affairs of the other(y).
Appears in 2 contracts
Sources: Transfer Agreement (Dryrock Issuance Trust), Transfer Agreement (Dryrock Issuance Trust)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a division of AFC or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order thatSuch Transferor shall:
(i) The Seller will be Maintain in full effect its existence, rights and franchises as a limited purpose liability company under the laws of the state of its formation or as a corporation whose primary activities are restricted under the laws of the state of its incorporation and will obtain and preserve its qualification to do business in its articles each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of incorporation to purchasing this Agreement and the applicable Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables Purchase Agreement and conducting such each other activities as it deems instrument or agreement necessary or appropriate to carry out its primary activities;proper administration hereof and to permit and effectuate the transactions contemplated hereby.
(ii) Not less than one member Except as provided herein, maintain its own deposit, securities and other account or accounts, separate from those of Seller’s Board any Affiliate of Directors (the “Independent Directors”) shall be individuals who are not directsuch Transferor, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliateswith financial institutions. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking funds of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses Transferor will not be paid diverted to any other Person or for other than the company use of such Transferor, and, except as may be expressly permitted by Originator this Agreement or any Affiliate thereof unless the Seller applicable Receivables Purchase Agreement, the funds of such Transferor shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of any other Person.
(iii) Ensure that, to the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts extent that it shares the same officers or other depository accounts employees as any of its members or other Affiliates, the salaries of and the expenses related to which providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the Originator salary and benefit costs associated with all such common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with any of its members or other Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that such Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any Affiliate thereof other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs.
(other than AFC in v) Ensure that all material transactions between such Transferor and any of its capacity as Servicer) has independent access Affiliates shall be only on an arm’s-length basis and shall not pool be on terms more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties.
(vi) Maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from those of its members and other Affiliates. To the extent that such Transferor and any of its members or other Affiliates have offices in contiguous space, there shall be fair and appropriate allocation of overhead costs (including rent) among them, and each such entity shall bear its fair share of such expenses.
(vii) Conduct its affairs strictly in accordance with its certificate of formation and limited liability company agreement or its certificate of incorporation and bylaws and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all action, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, intercompany transaction accounts. Regular members’ and directors’ meetings shall be held at least annually.
(viii) Ensure that its board of directors shall at all times include at least one Independent Director (for purposes hereof, “Independent Director” shall mean any member of the board of directors of such Transferor that is not and has not at any time been (x) an officer, agent, advisor, consultant, attorney, accountant, employee, member or shareholder of any Affiliate of such Transferor which is not a special purpose entity, (y) a director of any Affiliate of such Transferor other than an independent director of any Affiliate which is a special purpose entity or (z) a member of the immediate family of any of the Seller’s foregoing).
(ix) Ensure that decisions with respect to its business and daily operations shall be independently made by such Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of such Transferor) and shall not be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own authorized officers and agents, and no Affiliate of such Transferor shall be appointed to act as agent of such Transferor. Such Transferor shall at all times use its own stationery and business forms and describe itself as a separate legal entity.
(xi) Other than as provided in the Revolving Credit Agreement, ensure that no Affiliate of such Transferor shall advance funds at any time with any funds or loan money to such Transferor, and no Affiliate of the Originator or any Affiliate thereof;such Transferor will otherwise guaranty debts of such Transferor.
(xii) The Seller shall Other than organizational expenses and as expressly provided herein, pay to the Originator the marginal increase all expenses, indebtedness and other obligations incurred by it using its own funds.
(or, in the absence of such increase, the market amount of its portionxiii) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or Not enter into an agreement to be namedany guaranty, as a direct or contingent beneficiary or loss payee, under any such insurance policyotherwise become liable, with respect to or hold its assets or creditworthiness out as being available for the payment of any amounts payable due to occurrences or events related to the Originator or obligation of any Affiliate thereof (other than the Seller); andof such Transferor nor shall such Transferor make any loans to any Person.
(xiiixiv) The Seller will maintain arm’s length relationships Ensure that any financial reports required of such Transferor shall comply with generally accepted accounting principles and shall be issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates so long as such consolidated reports contain footnotes describing the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts effect of the other or transactions between such Transferor and such Affiliate and also state that the decisions or actions respecting the daily business and affairs assets of such Transferor are not available to pay creditors of the otherAffiliate.
(xv) Ensure that at all times it is adequately capitalized to engage in the transactions contemplated in its certificate of formation and its limited liability company agreement or in its certificate of incorporation and bylaws.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement, Pooling and Servicing Agreement (American Express Receivables Financing Corp Iv LLC)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC The Borrower shall take all reasonable steps (including, without limitation, all steps which the Agent may from time to continue the Seller’s time reasonably request) to maintain its and its Restricted Subsidiaries' identity as a separate legal entity entities and to make it apparent to third Persons parties that the Seller is Borrower and such Restricted Subsidiaries are each an entity with assets and liabilities distinct from those of AFC, the Originator Holdings and any of Holdings' Affiliates (other Personthan the Borrower and its Subsidiaries) (each of Holdings and such of Holdings' Affiliates are referred to in this Section 6.2(M), and is not a division of AFC or any other Personas the "Parent"). Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IVforegoing, the Seller and AFC shall take such actions as shall be required in order thatBorrower shall:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in require that all full-time employees of the Borrower and each of its articles Restricted Subsidiaries identify themselves as such and not as employees of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activitiesParent;
(ii) Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, compensate all employees, affiliatesconsultants, associatesinvestment bankers, customers or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approveaccountants, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcylawyers and agents directly, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own Borrower's or such Restricted Subsidiary's applicable bank accounts accounts, for services provided to the Seller except as provided herein in respect Borrower or such Restricted Subsidiary by such employees, consultants, investment bankers and agents and, if any employee, consultant, investment banker or agent of the Servicing Fee. The Seller will engage no agents other than a Servicer for Borrower or any of its Restricted Subsidiaries is also an employee, consultant, investment banker or agent of Parent, allocate the Receivablescompensation of such employee, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect consultant, investment banker or overhead expenses for items shared agent between the Seller Borrower or the Restricted Subsidiary, as applicable, and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical Parent on the basis of actual use or of the value of services renderedso rendered to the extent practicable and, and otherwise to the extent such allocation is not practical, on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay such services;
(iii) allocate all overhead expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, (including, without limitation, legal telephone and other feesutility charges and lease and office expenses) for items shared between the Borrower or any Restricted Subsidiary of the Borrower and Parent 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;
(iv) cause the Borrower and each Restricted Subsidiary of the Borrower to be named as an insured on the insurance policy covering its property, or enter into an agreement with the holder of such policy whereby in the event of a loss in connection with such property, proceeds are paid to the Borrower or applicable Restricted Subsidiary;
(v) maintain the Borrower's and its Restricted Subsidiaries' books and records complete and separate from those of the Parent;
(vi) The Seller’s operating expenses will not be paid by Originator ensure that any of the Borrower's or any Affiliate thereof unless Parent's consolidated financial statements or other public information for the Seller shall have agreed in writing with such Person to reimburse such Person for any such paymentsBorrower and its Affiliates on a consolidated basis contain appropriate disclosures concerning the Borrower's separate existence;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator Parent is an account party, into which the Parent makes deposits or any Affiliate thereof from which the Parent has the power to make withdrawals;
(other than AFC in its capacity as Servicerviii) has independent access and shall not pool permit the Parent to pay any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
Borrower's operating expenses (xii) The Seller shall pay except when paid and charged pursuant to an allocation based upon actual use, to the Originator extent practicable and, to the marginal increase (orextent such allocation is not practicable, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as on a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events basis reasonably related to the Originator or any Affiliate thereof (other than the Selleractual use); and
(xiiiix) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator not pay dividends or any Affiliate thereof that renders make distributions, loans or otherwise furnishes services other advances to Parent except to the Seller will be compensated extent duly authorized by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts its board of the other or the decisions or actions respecting the daily business directors and affairs of the otherin accordance with applicable corporate law.
Appears in 2 contracts
Sources: Credit Agreement (Gfsi Inc), Credit Agreement (Gfsi Inc)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a division of AFC or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order thatThe Club Trustee shall:
(i) Maintain its own deposit account or accounts, separate from those of any Affiliate, with commercial banking institutions. The Seller funds of the Club Trustee will not be a limited purpose corporation whose primary activities are restricted in its articles diverted to any other Person or for other than trust or corporate uses of incorporation to purchasing Receivables from the OriginatorClub Trustee, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;applicable.
(ii) Not less than one member of Seller’s Board of Directors (Ensure that, to the “Independent Directors”) shall be individuals who are not direct, indirect extent that it shares the same officers or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or other employees as any of its stockholders, beneficiaries or Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iii) Ensure that, to the extent that the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) jointly do business with vendors or service providers or share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. The Seller’s Board To the extent that the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) do business with vendors or service providers when the goods and services provided are partially for the benefit of Directors shall not approve, or take any other action Person, the costs incurred in so doing shall be fairly allocated to cause or among such entities for whose benefit the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcygoods and services are provided, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in and each case the Independent Directors such entity shall approve the taking bear its fair share of such action in writing prior to the taking costs. All material transactions between Club Trustee and any of such action. The Independent Directors’ fiduciary duty its Affiliates shall be to only on an arms' length basis.
(iv) To the Seller (extent that the Club Trustee and creditors) and not to the Seller’s shareholders in respect any of any decision of the type described its stockholders, beneficiaries or Affiliates have offices in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Sellersame location, there shall be selected a replacement Independent Director who fair and appropriate allocation of overhead costs among them, and each such entity shall not be an individual within the proscriptions bear its fair share of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;expenses.
(v) The Seller will contract Conduct its affairs strictly in accordance with the Servicer to perform for the Seller all operations required on a daily basis to service Club Trust Agreement, its Receivables. The Seller will pay the Servicer a monthly fee based on the level Amended and Restated Articles of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller Incorporation and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extentits Bylaws, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services renderedapplicable, and otherwise on a basis reasonably related to the actual use or the value of services renderedobserve all necessary, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution appropriate and delivery of the Transaction Documentscustomary corporate formalities, including, without limitationbut not limited to, legal holding all regular and other fees;
(vi) The Seller’s operating expenses will not special stockholders', trustees' and directors' meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereoftaken, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access maintaining accurate and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (orseparate books, in the absence of such increaserecords and accounts, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereofincluding, but the Seller shall notnot limited to, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator payroll and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the otherintercompany transaction accounts.
Appears in 2 contracts
Sources: Sale and Servicing Agreement (Bluegreen Corp), Sale and Servicing Agreement (Bluegreen Corp)
Separate Corporate Existence. Each of the Seller Borrower and AFC hereby acknowledges that the PurchasersHoldings shall, the Agent and the Purchaser Agents are entering into the transactions contemplated shall cause each of their respective Subsidiaries to, take all steps as requested by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate Administrative Agent from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps time to time to (i) continue the Seller’s its identity as a separate legal entity from SIRIUS and to its Affiliates (other than the Borrower, Holdings and their respective Subsidiaries) and (ii) make it apparent to third Persons that the Seller it is an entity with assets and liabilities distinct from those of AFCSIRIUS and its Affiliates (other than the Borrower, the Originator Holdings and any other Person, their respective Subsidiaries) and is not a division of AFC SIRIUS or any of its Affiliates (other Personthan the Borrower, Holdings and their respective Subsidiaries). Without limiting the generality of the foregoing and in addition to and consistent with the covenant covenants set forth in paragraph (a) herein, each of this Exhibit IVthe Borrower and Holdings shall, the Seller and AFC shall cause each of their respective Subsidiaries to, take such actions as shall be required in order that:
(ia) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller it and the Originator SIRIUS (or any Affiliate thereof other than Holdings, the Borrower or their respective Subsidiaries) share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated pursuant to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other feesJoint Services Agreement;
(vib) The Seller’s its operating expenses will not be paid by Originator or any Affiliate thereof unless SIRIUS except as contemplated by the Seller shall have agreed in writing with such Person to reimburse such Person for any such paymentsJoint Services Agreement;
(viic) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereofSIRIUS;
(ixd) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s its assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and SIRIUS or any Affiliate thereofthereof (other than Holdings, the Borrower or their respective Subsidiaries);
(xie) The Seller it will strictly observe corporate formalities in its dealings with the Originator and Sirius or any Affiliate thereofthereof (other than Holdings, and the Borrower or their respective Subsidiaries) and, other than pursuant to the Joint Services Agreement, its funds or other assets of the Seller will not be commingled with those of the Originator SIRIUS or any Affiliate thereof. The Seller thereof (other than Holdings, the Borrower or their respective Subsidiaries);
(f) it shall not maintain joint bank accounts or other depository accounts to which the Originator SIRIUS or any Affiliate thereof (other than AFC in its capacity as ServicerHoldings, the Borrower or their respective Subsidiaries) has independent access and shall not pool any access;
(g) none of the SellerBorrower’s funds will at any time be pooled with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator SIRIUS or any Affiliate thereof (other than Holdings, the SellerBorrower or their respective Subsidiaries);
(h) it will maintain arm’s-length relationships with SIRIUS and any Affiliate thereof (other than Holdings, the Borrower or their respective Subsidiaries); and
(xiiii) The Seller it will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will not hold itself out to be responsible for the debts of the other SIRIUS or the decisions or actions respecting the daily business and affairs of the otherSIRIUS.
Appears in 2 contracts
Sources: Credit Agreement (Xm Investment LLC), Credit Agreement (Xm Investment LLC)
Separate Corporate Existence. Each of the The Seller and AFC hereby acknowledges that the Purchasers, the Agent Trustee and the Purchaser Agents are Investor Certificateholders are, and will be, entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from AFCthe Originator, Servicer and any other Person. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity maintain its existence as a corporation separate legal entity and to make it apparent to third Persons that apart from the Seller is an entity with assets and liabilities distinct from those of AFCOriginator, the Originator Servicer, and any other Person, and is not a division Affiliate of AFC the Originator or any other Personthe Servicer. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IVforegoing, the Seller and AFC shall take such actions as shall be required in order thatshall:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in (a) observe the corporate procedures required by its articles certificate of incorporation to purchasing Receivables from incorporation, its by-laws and the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers corporate law of the Originator or any State of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction DocumentsDelaware, including, without limitation, legal holding separate director and shareholder meetings from those of any other Person and otherwise ensuring at all times that it is maintained as a separate corporate entity from any other Person and (b) not amend or modify any provision of its Certificate of Incorporation or by-laws unless the Rating Agency Condition shall have been satisfied with respect to such amendment or modification;
(a) ensure that its Board of Directors duly authorizes all of its corporate actions, and (b) keep correct and complete books and records of account separate from those of any other Person, and correct and complete minutes of the meetings and other feesproceedings of its stockholders and Board of Directors, and (c) where necessary, obtain proper authorization from its directors or stockholders, as appropriate, for corporate action;
(iii) provide for its operating expenses and liabilities from its own funds and maintain deposit accounts and other bank accounts separate from those of the Originator, the Servicer, or any of their respective Affiliates;
(iv) act solely in its corporate name and through its duly authorized officers or agents in the conduct of its business and ensure that neither the Originator nor the Servicer nor any of their respective Affiliates controls any corporate decisions made by it;
(v) to the extent that it obtains any services from the Originator or the Servicer or any of their respective Affiliates, ensure that the terms of such arrangements are comparable to those that would be obtained in an arm's-length transaction;
(vi) The Seller’s operating expenses will ensure that its assets are not be paid by Originator commingled with those of the Originator, the Servicer, or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such paymentsother Person;
(vii) The Seller will have its own maintain separate mailing address corporate records and stationerybooks of account from those of the Originator, the Servicer or any other Person;
(viii) The Seller’s books and records will be maintained separately from those not conduct any business or engage in any activities other than in accordance with its Certificate of the Originator or any Affiliate thereofIncorporation;
(ixa) Any financial statements not hold itself out, or permit itself to be held out, as having agreed to pay, or as being liable for, the debts of the Originator, the Servicer, or any other Person; (b) maintain an arm's-length relationship with the Originator or KAR which are consolidated and the Servicer and their respective Affiliates with respect to include any transactions between itself and such other Person; and (c) continuously maintain as official records the Seller will contain detailed notes clearly stating that resolutions, agreements and other instruments underlying the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivabletransactions contemplated by this Agreement;
(x) The select and at all times maintain as its Independent Director (as defined in the Seller’s assets will be maintained 's Certificate of Incorporation) a Person who meets the following qualifications (which qualifications are in addition to those set forth in the its Certificate of Incorporation): the Independent Director shall have (a) prior experience as an independent director for a manner that facilitates their identification and segregation from those corporation whose charter documents require the unanimous written consent of all independent directors thereof before such corporation could consent to the Originator and institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereofapplicable federal or state law relating to bankruptcy, and funds (b) at least three years of employment experience with one or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (ormore entities that provide, in the absence ordinary course of such increasetheir respective businesses, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereofadvisory, but the Seller shall not, directly management or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes placement services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator issuers of securitization or any Affiliate thereof will be structured finance instruments, agreements or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the othersecurities.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Charming Shoppes Receivables Corp), Pooling and Servicing Agreement (Charming Shoppes Master Trust)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Insurer, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a division of AFC or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph PARAGRAPH (a) of this Exhibit EXHIBIT IV, the Seller and AFC shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s 's Board of Directors (the “Independent Directors”"INDEPENDENT DIRECTORS") shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s 's Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ ' fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s 's shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s 's own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s 's operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s 's books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR ADESA which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s 's accounts receivable;
(x) The Seller’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s 's funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s 's length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Adesa Inc), Receivables Purchase Agreement (Adesa Inc)
Separate Corporate Existence. Each MRFC has, at all times since its incorporation, complied with the covenants set forth in Section 5.01(n). MRFC has no Debt except in connection with the Related Documents. MRFC is operated in such a manner that the separate company existence of MRFC, on the one hand, and any Metaldyne Group Member, on the other hand, would not be disregarded in the event of the Seller bankruptcy or insolvency of any member of the Metaldyne Group and, without limiting the generality of the foregoing:
(i) MRFC is a limited purpose entity whose activities are restricted in its Charter Documents to those activities expressly permitted hereunder and AFC hereby acknowledges that under the Purchasersother Related Documents and MRFC has not engaged, nor does it presently engage, in any activity other than those activities expressly permitted hereunder and under the other Related Documents, nor has MRFC entered into any agreement other than this Transfer Agreement, the Agent other Related Documents to which it is a party and, with the prior written consent of the Requisite Purchasers and the Purchaser Agents Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) MRFC has duly appointed a board of directors and its business is managed solely by its own officers and directors, each of whom when acting for MRFC shall be acting solely in his or her capacity as an officer or director of MRFC and not as an officer, director, employee or agent of any Metaldyne Group Member;
(iii) MRFC pays its own incidental administrative costs and expenses, and except as otherwise expressly permitted hereunder, under the other Related Documents and MRFC’s Charter Documents, no Metaldyne Group Member pays MRFC’s expenses, guarantees MRFC’s obligations or advances funds to MRFC for the payment of expenses or otherwise;
(iv) the separate creditors of MRFC will be entitled, on the winding-up of MRFC, to be satisfied out of MRFC’s assets prior to any value in MRFC becoming available to the holders of MRFC’s Stock in their capacities as such stockholders;
(v) all business correspondence and other communications of MRFC are entering into conducted in MRFC’s own name, on its own stationery and through a separately-listed telephone number; and
(vi) MRFC does not act as agent for any Metaldyne Group Member but instead presents itself to the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity public as a legal entity separate from AFC. Therefore, from each such member and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a division of AFC or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described independently engaged in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director business of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate purchasing and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the financing Transferred Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 2 contracts
Sources: Receivables Transfer Agreement (Metaldyne Corp), Receivables Transfer Agreement (Metaldyne Corp)
Separate Corporate Existence. Each The Transferor shall: (i) maintain its corporate existence and remain in good standing under the laws of the Seller and AFC hereby acknowledges that the PurchasersState of Delaware; (ii) observe all procedures required by its certificate of formation, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Transferor LLC Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a division of AFC or any other Person. Without limiting the generality laws of the foregoing State of Delaware; (iii) ensure that (x) the business and in addition to and consistent with affairs of the covenant set forth in paragraph (a) Transferor are at all times managed by or under the direction of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s Board of Directors Directors, (the “Independent Directors”y) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approvehave duly authorized all corporate actions requiring such authorization and, or take any other (z) when necessary, the Transferor shall have obtained proper authorization for corporate action to cause from its stockholder; (iv) at all times includes at least two Independent Managers (as such term is defined in the commencement Transferor LLC Agreement); (v) maintain separate corporate records and books of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect account from those of any decision Affiliate and keep correct and complete books and records of account and minutes of the type described meetings and other proceedings of its stockholder and Board of Directors; (vi) pay the fair market rent for any office space located in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be office of any Affiliate and a director fair share of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions any overhead costs; (vii) maintain separate bank accounts and books of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any account from those of its Affiliates and ensure that its funds and other assets shall at all times be readily distinguishable from the funds and other assets of its Affiliates and not be commingled with the funds or any management personnel other assets of any such Person or Affiliate its Affiliates; (viii) pay from its own separate funds all material liabilities incurred by it, including material operating and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member administrative expenses; provided that the organizational expenses of the business community, having a sound reputation Transferor and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses will not documentation with respect to the issuance of the Securities or notes that it may issue from time to time may be paid by Originator an Affiliate. No general overhead or administrative expenses of any Affiliate thereof shall be charged or otherwise allocated to the Transferor unless such general overhead or administrative expenses are directly attributable to services provided to or for the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those account of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the otherTransferor.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Partners First Credit Card Master Trust), Pooling and Servicing Agreement (Partners First Receivables Funding Corp)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Insurer, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a division of AFC or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR ADESA which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (KAR Auction Services, Inc.), Receivables Purchase Agreement (Adesa Inc)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a division of AFC or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order thatThe Transferor shall:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted maintain its corporate existence and remain in its articles good standing under the laws of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing State of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activitiesDelaware;
(ii) Not less than one member observe all corporate procedures required by its certificate of Seller’s Board of Directors (incorporation, its bylaws and the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers corporation law of the Originator or any State of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent DirectorDelaware;
(iii) No Independent Director ensure that (x) the business and affairs of the Transferor are at all times managed by or under the direction of its Board of Directors, (y) its Board of Directors shall at any time serve as a trustee in bankruptcy have duly authorized all corporate actions requiring such authorization and, (z) when necessary, the Transferor shall have obtained proper authorization for Originator or any Affiliate thereofcorporate action from its stockholder;
(iv) Any employee, consultant or agent at all times includes at least two Independent Directors (as such term is defined in the certificate of incorporation of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing FeeTransferor);
(v) The Seller will contract maintain separate corporate records and books of account from those of any Affiliate and keep correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholder and Board of Directors;
(vi) pay the fair market rent for any office space located in the office of any Affiliate and a fair share of any overhead costs;
(vii) maintain separate bank accounts and books of account from those of its Affiliates and ensure that its funds and other assets shall at all times be readily distinguishable from the funds and other assets of its Affiliates and not be commingled with the Servicer to perform for the Seller funds or other assets of its Affiliates;
(viii) pay from its own separate funds all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed material liabilities incurred by the Servicer. The Seller will not incur any it, including material indirect or overhead expenses for items shared between the Seller operating and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, administrative expenses; provided that the Seller organizational expenses of the Transferor and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses will not documentation with respect to the issuance of the Certificates or notes that it may issue from time to time may be paid by Originator an Affiliate. No general overhead or administrative expenses of any Affiliate thereof shall be charged or otherwise allocated to the Transferor unless such general overhead or administrative expenses are directly attributable to services provided to or for the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those account of the Originator or any Affiliate thereof;Transferor.
(ix) Any financial statements conduct its business solely in its own name so as not to mislead others as to its identity or the identity of any Affiliate. All oral and written communications of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity Transferor, including without limitation letters, invoices, purchase orders, contracts, statements, and has sold ownership interests applications shall be made solely in the Seller’s accounts receivablename of the Transferor;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification not make any guaranty with respect to the obligations of any Affiliate and segregation from those no Affiliate shall make any guaranty with respect to the obligations of the Originator and any Affiliate thereofTransferor;
(xi) ensure that there will be no intercompany debt between the Transferor and any Affiliate; provided, that the stockholder of the Transferor may contribute capital to the Transferor in such amounts as are necessary to assure that such Transfer has adequate capital for its business and the Transferor may issue subordinated notes in the amount and manner specified in the Receivables Purchase Agreement;
(xii) act solely in its own name and through its duly authorized officers or agents in the conduct of its business and at all times maintain an arm's length relationship with its Affiliates. The Seller will strictly observe corporate formalities Transferor shall not: (v) hold itself out as having agreed to pay or become liable for the debts of any Affiliate; (w) fail to correct any known misrepresentation with respect to the Transferor's agreement to pay or become liable for the debts of any Affiliate; (x) operate or purport to operate as an integrated, single economic unit with any Affiliate in its dealings with any other Person; (y) seek or obtain credit or incur any obligation to any Person based upon the assets of an Affiliate or unaffiliated entity; or (z) induce any Person reasonably to rely on the creditworthiness of any Affiliate in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller)Transferor; and
(xiii) The Seller will maintain arm’s length relationships disclose in its annual financial statements the effects of the transactions contemplated herein and in each Receivables Purchase Agreement in accordance with generally accepted accounting principles. Such financial statements shall (x) clearly indicate the Originator separate existence of the Transferor and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services its Affiliates, (y) reflect the Transferor's separate assets and liabilities and (z) record the purchase of the Receivables pursuant to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the otherapplicable Receivables Purchase Agreement as a purchase under generally accepted accounting principles.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Credit Card Receivables Funding Corp), Pooling and Servicing Agreement (Partners First Receivables Funding Corp)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, Purchaser and the Agent and the Purchaser Agents are entering into the transactions contemplated by the this Agreement and the other Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from AFCLINC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps specifically required by this Agreement to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator LINC and any other Person, and is not a division of AFC LINC or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IVforegoing, the Seller and AFC shall take such actions as shall be required in order that:
(ia) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles certificate of incorporation to purchasing Receivables acquiring retail installment contracts and leases, and the related equipment from the Originator, entering into agreements for the servicing of this Agreement to finance such Receivables, selling undivided interests in such Receivables purchases and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(iib) Not less than one member of Seller’s 's Board of Directors (the “"Independent Directors”Director") shall be individuals an individual who are is not a direct, indirect or beneficial stockholdersstockholder, officersofficer, directorsdirector, employeesemployee, affiliates, associates, customers customer or suppliers supplier of the Originator LINC or any of its AffiliatesAffiliates (other than Seller and other special purpose, "bankruptcy remote" corporations). The Certificate of Incorporation of Seller shall provide that (i) Seller’s 's Board of Directors shall not approve, or take any other action to cause the commencement of filing of, a voluntary case bankruptcy petition or other dissolution proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case all of the Board of Director's, including the Independent Directors Director, shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (action and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with such provision cannot be amended without the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member prior written consent of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iiic) No The Independent Director shall not at any time serve as a trustee in bankruptcy for Originator Seller, LINC or any Affiliate thereof;
(ivd) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts funds of Seller for services provided to the Seller except as provided herein in respect of the Servicing FeeSeller. The Seller will engage no agents other than a Servicer for the ReceivablesContracts, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee, and attorneys and accountants, who will be compensated from funds of Seller, and other than LINC pursuant to the Operating Agreement, provided that LINC shall pay the attorneys' fees and disbursements incurred in connection with the initial closing of the transactions contemplated hereby;
(ve) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator LINC (or any other Affiliate thereof which are not reflected thereof), except as set forth in the Servicing FeeOperating Agreement. To the extent, if any, that the Seller and the Originator LINC (or any other Affiliate thereof thereof) share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator LINC shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal legal, commitment, agency and other up-front fees;
(vif) The Seller’s 's operating expenses will not be paid by Originator LINC or any other Affiliate thereof unless thereof, except as permitted under the Seller shall have agreed in writing with such Person terms of this Agreement or otherwise consented to reimburse such Person for any such paymentsby the Agent and Purchaser;
(viig) The Seller will have its own separate mailing address and stationery;
(viiih) The Seller’s 's books and records will be maintained separately from those of the Originator or LINC and any other Affiliate thereof;
(ixi) Any All audited financial statements of the Originator LINC or KAR which any Affiliate thereof that are consolidated to include the Seller will contain detailed notes clearly stating that the (A) all of Seller's assets are owned by Seller, and (B) Seller is a separate corporate entity and has sold with creditors who have received ownership and/or security interests in the Seller’s accounts receivable's assets;
(xj) The Seller’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and LINC or any Affiliate thereof;
(xik) The Seller will strictly observe corporate formalities in its dealings with the Originator and LINC or any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator LINC or any Affiliate thereofthereof (other than in connection with LINC's role as Servicer to the extent permitted hereby). The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator LINC or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any access, except as Servicer hereunder. None of the Seller’s 's funds will at any time be pooled with any funds of the Originator LINC or any Affiliate thereof, except for Collections to the extent permitted by this Agreement;
(xiil) The Seller shall pay to the Originator LINC (or any Affiliate thereof) the marginal increase (or, in the absence of such increase, the market amount of its portionportion of) of in the premium payable with respect to any insurance policy that covers the Seller and LINC (or any Affiliate thereof), but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, payee under any such insurance policy, policy with respect to any amounts payable due to occurrences or events related to the Originator LINC (or any Affiliate thereof (other than the Sellerthereof); and
(xiiim) The Seller will maintain arm’s arm's-length relationships with the Originator LINC (and any Affiliate thereof). The Originator or any Affiliate thereof Any Person, including Seller's Affiliates, that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such servicesservices it renders or otherwise furnishes to Seller. Neither the Seller nor the Originator or any Affiliate thereof LINC will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 1 contract
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, Purchaser and the Agent and the Purchaser Agents are entering into the transactions contemplated by the this Agreement and the Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from AFCServicer and Union. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFCServicer, the Originator Union, and any other PersonAffiliate thereof, and is not a division of AFC Servicer, Union or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IVSection 7.01(b), the Seller and AFC shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles certificate of incorporation to purchasing Receivables from the OriginatorUnion, owning, holding, granting security interests, or selling interests, in Receivables, Contracts, Related Security and Collections purchased from Union, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s 's Board of Directors (the “"Independent Directors”Director") shall be individuals an individual who are is not a direct, indirect or beneficial stockholdersstockholder, officersofficer, directorsdirector, employeesemployee, affiliatesaffiliate, associatesassociate, customers customer or suppliers supplier of the Originator or any of its Affiliates. The Certificate of Incorporation of Seller shall provide that Seller’s 's Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller Seller, unless in each case the Independent Directors Director shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ Director's fiduciary duty shall be to the Seller (and its creditors) and not to the Seller’s 's shareholders in respect of any decision of the type described in the preceding sentence. In the event an the Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator Union or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereofof Union;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s 's own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Servicer's Fee. The Seller will engage no agents other than an agent for service of process and a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Servicer's Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller Seller, Union and the Originator or any other Affiliate thereof which that are not reflected in the Servicing Servicer's Fee. To the extent, if any, that the Seller Seller, Union and the Originator or any other Affiliate thereof share items of expenses not reflected in the Servicing Servicer's Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator Union shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction DocumentsDocuments and the Stand-by Purchase Agreement and any amendments thereto, including, without limitation, legal legal, commitment, agency and other fees;
(vi) The Seller’s 's operating expenses will not be paid by Originator Union or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such paymentsthereof;
(vii) The Seller will have its own separate mailing address stationery and stationerytelephone number;
(viii) The Seller’s 's books and records will be maintained separately from those of the Originator or Union and any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR Union which are consolidated to include the Seller will contain detailed notes clearly stating that the (A) all of Seller's assets are owned by Seller and (B) Seller is a separate corporate entity with creditors who have received ownership and has sold ownership security interests in the Seller’s accounts receivable's assets;
(x) The Seller’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;and
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator Union and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or Union and any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator Union or any Affiliate thereof (other than AFC Union in its capacity as Servicer) has independent access and shall not pool any access. None of the Seller’s 's funds will at any time be pooled with any funds of the Originator Union or any Affiliate thereof;
(xii) The Seller shall pay to Union or the Originator appropriate Affiliate of Union, as applicable, the marginal increase (or, in the absence of such increase, the market amount of its portionportion of) of in the premium payable with respect to any insurance policy that covers the Seller and Union or any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator Union or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s 's length relationships with the Originator Union and any Affiliate thereof. The Originator or any Affiliate thereof Any Person that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will not be or will not hold itself out to be responsible for the debts of the other Union or any Affiliate thereof or the decisions or actions respecting the daily business and affairs of the otherUnion or any Affiliate thereof.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Fruit of the Loom Inc /De/)
Separate Corporate Existence. Each of the Seller The Servicer and AFC Borrower hereby acknowledges acknowledge that the Purchasers, Lenders and the Agent and the Purchaser Agents are entering into the transactions contemplated by the this Agreement and the other Transaction Documents in reliance upon each of the SellerBorrower’s and the Transferor’s identity as being that of a discrete legal entity entity, separate from AFCAspen. Therefore, from and after the date hereof, the Seller Borrower and AFC the Servicer shall take all reasonable steps required to maintain and continue the SellerBorrower’s identity as a separate legal entity and to make it apparent to third Persons that the Seller Borrower is an entity with assets and liabilities distinct from those of AFCAspen, the Originator Transferor and any other Person, and is not a division of AFC Aspen, the Transferor or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IVforegoing, the Seller Borrower and AFC the Servicer shall take such actions as shall be required in order that:
(i) The Seller Borrower will be a special-purpose limited purpose corporation liability company whose primary activities are restricted in its articles of incorporation limited liability company agreement to purchasing Receivables from owning the OriginatorPool Assets, entering into agreements for the servicing of such ReceivablesTransaction Documents to which it is a party, selling undivided interests in such Receivables borrowing under this Agreement and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Sellerthe Borrower’s Board of Directors (the “Independent DirectorsDirector”) shall be individuals an individual who are is not, and has not been for the five years preceding the Closing Date, (i) a direct, indirect or beneficial stockholdersstockholder, officersofficer, directors, employees, affiliates, associates, customers or suppliers director (other than as a director of the Originator Borrower and the Transferor), employee, affiliate or associate of the Borrower, the Transferor or Aspen or any of their Affiliates, (ii) a customer or supplier of the Borrower, the Transferor or Aspen or any of their Affiliates (other than a supplier to which the Borrower, the Transferor or Aspen and their Affiliates has paid no more than $50,000 in Aspen’s and its Affiliates’ then-current fiscal year or any of the three immediately preceding fiscal years); or (iii) a customer or supplier of the Borrower, the Transferor, Aspen or any of their Affiliates whose (A) sales to the Borrower, the Transferor, Aspen or any of their Affiliates, in the case of a supplier, represent a material portion of such supplier’s gross sales; or (B) accounts receivable owing to the Borrower, the Transferor, Aspen or any of their Affiliates, in the case of a customer, represent a material portion of such customer’s total accounts receivable. The Sellerlimited liability company agreement of the Borrower shall provide that (i) Borrower’s Board of Directors shall not approve, or take any other action to cause the commencement of filing of, a voluntary case or other proceeding bankruptcy petition with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller Borrower unless in each case the Independent Directors Director shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (, and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with such provision cannot be amended without the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member prior written consent of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No The Independent Director shall not at any time serve as a trustee in bankruptcy for Originator the Borrower, the Transferor, Aspen or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller Borrower will be compensated from funds of the Seller’s own bank accounts Borrower, as appropriate, for services provided to the Seller except Borrower. Except as otherwise provided herein in respect of herein, the Servicing Fee. The Seller Borrower will engage no agents other than a Servicer for the Pool Receivables, which Servicer will be fully compensated for its services rendered to the Seller Borrower by payment of the Servicing Servicer’s Fee;
(v) The Seller Borrower will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Pool Receivables. The Seller Borrower will pay the Servicer a monthly fee based on the level of Pool Receivables being managed serviced by Servicer reasonably equivalent to the Servicer. fee which would be required by an independent third-party servicer;
(vi) The Seller Borrower will not incur any material indirect or overhead expenses for items shared between among the Seller Borrower, the Transferor and the Originator Aspen (or any other Affiliate thereof which are not reflected in the Servicing Feethereof). To the extent, if any, that the Seller Borrower, the Transferor and the Originator Aspen (or any other Affiliate thereof thereof) share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator Aspen shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vivii) The SellerBorrower’s operating expenses will not be paid by Originator the Transferor, Aspen or any other Affiliate thereof unless except as permitted under the Seller shall have agreed in writing with such Person terms of this Agreement or otherwise consented to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationeryby the Agent;
(viii) The SellerBorrower will have its own separate phone extension and stationery;
(ix) The Borrower’s books and records will be maintained separately from those of the Originator or Transferor, Aspen and any other Affiliate thereof;
(ixx) Any All audited financial statements of the Originator Transferor, Aspen or KAR which any Affiliate thereof that are consolidated to include the Seller Borrower will contain detailed notes clearly stating that (A) all of the Seller Borrower’s assets are owned by the Borrower, (B) all of the Transferor’s assets are owned by the Transferor, (C) the Borrower is a separate corporate legal entity and has sold ownership interests in (D) the Seller’s accounts receivableTransferor is a separate legal entity;
(xxi) The SellerBorrower’s assets will be maintained in a manner that facilitates their identification and segregation from those of Aspen, the Originator and Transferor or any Affiliate thereof;
(xixii) The Seller Borrower will strictly observe corporate formalities in its dealings with the Originator and Transferor, Aspen or any Affiliate thereof, and funds or other assets of the Seller Borrower will not be commingled with those of the Originator Transferor, Aspen or any Affiliate thereof. The Seller Borrower shall not maintain joint bank accounts or other depository accounts to which the Originator Transferor, Aspen or any Affiliate thereof (other than AFC Aspen in its capacity as Servicer) has independent access and shall not pool any access. Other than to the extent on deposit in the Collection Accounts or as otherwise contemplated hereunder, none of the SellerBorrower’s funds will at any time be pooled with any funds of the Originator Aspen or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller Borrower will maintain arm’s arm’s-length relationships with the Originator Transferor, Aspen and any Affiliate thereof. The Originator or any Affiliate thereof Any Person that renders or otherwise furnishes services to the Seller Borrower will be compensated by the Seller thereby at market rates for such servicesservices it renders or otherwise furnishes thereto except as otherwise provided in this Agreement. Neither Except as contemplated in the Seller Transaction Documents, neither the Borrower nor the Originator or any Affiliate thereof Aspen will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.; and
Appears in 1 contract
Separate Corporate Existence. Each of the Seller and AFC the Servicer hereby acknowledges that the Purchasers, Purchaser and the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from AFCthe Servicer and the Originator. Therefore, from and after the date hereof, the Seller and AFC the Servicer shall take all reasonable steps to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFCthe Servicer, the Originator and any other Person, and is not a division of AFC the Servicer or the Originator or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph PARAGRAPH (a) of this Exhibit EXHIBIT IV, the Seller and AFC the Servicer shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles certificate of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s 's Board of Directors (the “Independent Directors”"INDEPENDENT DIRECTORS") shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s 's Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ ' fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s 's shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause CLAUSE (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s 's own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Servicer's Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Servicer's Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Servicer's Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Servicer's Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s 's operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s 's books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR any Affiliate thereof which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s 's accounts receivable;
(x) The Seller’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC SDW in its capacity as Servicer) has independent access and shall not pool any access. None of the Seller’s 's funds will at any time be pooled with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller)thereof; and
(xiii) The Seller will maintain arm’s 's length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the any Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Warren S D Co /Pa/)
Separate Corporate Existence. Each of Maintain the Seller and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s Borrower's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, the Servicer and is not a division mislead others as to the separate identity of AFC or any other PersonBorrower and the Originator and the Servicer. Without limiting the generality of the foregoing and in addition to and consistent with the covenant covenants set forth in paragraph (aSECTIONS 6.01(b) of this Exhibit IVand 6.01(l), the Seller and AFC shall take such actions as shall be required in order thatBorrower shall:
(i) The Seller will be constitute a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activitiesincorporation;
(ii) Not less than one member of Seller’s Board of Directors (not permit the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of direct involvement by the Originator or any other Affiliate of its Affiliates. The Seller’s Board the Originator in the day-to-day management of Directors shall not approvethe Borrower (other than permitting employees, officers and directors of the Originator to serve as employees, officers and directors of the Borrower and to take such acts and do such things in connection therewith as such persons deem reasonable or necessary under the circumstances to faithfully fulfill their duties as officers, directors and employees of Borrower, or as they are required to take or do by any applicable law, rule or regulation, or by the order, decree or judgment of any court, arbitrator or governmental body);
(iii) other action to cause the commencement of a voluntary case or other proceeding with respect than activities undertaken pursuant to the Seller under any applicable bankruptcyLease Sale and Contribution Agreement and this Agreement and the other Facility Documents, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless not engage in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship intercorporate transactions with the Originator or any of its Affiliates or any management personnel of any such Person or other Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the Originator, other than transactions in the ordinary course of business community, having between a sound reputation parent corporation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereofits subsidiary;
(iv) Any employee, consultant or agent maintain its own corporate records and books of account separate and apart from the Originator and the other Affiliates of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the ReceivablesOriginator, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Feehold corporate meetings and otherwise observe corporate formalities;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service prepare its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained financial statements separately from those of the Originator or and its other Affiliates and insure that any Affiliate thereof;
(ix) Any consolidated financial statements and books and records of the Originator or KAR which are consolidated to that include the Seller will contain detailed Borrower have notes clearly stating to the effect that the Seller Borrower is a separate corporate entity and has sold ownership interests in that the Seller’s accounts receivableBorrower's creditors have a claim on its assets prior to those assets becoming available to any creditors of the Originator;
(xvi) The Seller’s use its best efforts not to commingle funds or other assets will be maintained in a manner that facilitates their identification and segregation from of the Borrower with those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereofother Affiliate, and funds or other not to hold its assets of the Seller will not be commingled with those of in any manner that would create an appearance that such assets belong to the Originator or any Affiliate thereof. The Seller shall other Affiliate, and will not maintain joint bank accounts or other depository accounts (other than the Lockbox Account) 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;
(vii) pay its own expenses and obligations out of its own funds and assets, other than expenses incurred in connection with the closing of the transactions contemplated by this Agreement and the other Facility Documents;
(viii) not permit the Originator or any Affiliate thereof of the Originator (other than AFC in connection with the Lockbox Account in its capacity as Servicer) has independent access and shall not pool to either (A) guaranty any of the Seller’s Borrower's obligations or (B) advance funds at to the Borrower for the payment of expenses or otherwise, provided, however, that nothing in this clause (viii) shall prohibit any time with Servicer Advances made pursuant to the terms of this Agreement;
(ix) not pay any expenses, guaranty any obligations or advance funds for the payment of expenses or obligations of the Originator or any other Affiliate thereofof the Originator;
(x) conduct all business and all correspondence in connection therewith, of the Borrower and other communications, in the Borrower's own name and on its own stationery;
(xi) not permit the Originator or any other Affiliate of the Originator to act as an agent of the Borrower in any capacity (except as Servicer hereunder) and not itself act as an agent for the Originator, but instead present itself to the public as a corporation separate from the Originator, independently engaged in the business of purchasing and selling Leases; and
(xii) The Seller maintain one independent director at all times who shall pay to at no time be a shareholder, director, officer, employee or Affiliate of the Originator the marginal increase (oras provided in its articles of incorporation, in the absence provided, that such independent director may also be a director of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible similar special purpose entity created for the debts purpose of purchasing lease receivables and related assets from the other or the decisions or actions respecting the daily business and affairs of the otherOriginator.
Appears in 1 contract
Separate Corporate Existence. Each of the Seller and AFC the Servicer hereby acknowledges that the Purchasers, Purchaser and the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from AFCServicer, Atrium and the Originators. Therefore, from and after the date hereof, the Seller and AFC the Servicer shall take all reasonable steps to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFCServicer, Atrium, the Originator Originators and any other Person, and is not a division of AFC Servicer, Atrium or the Originators or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph PARAGRAPH (a) of this Exhibit EXHIBIT IV, the Seller and AFC the Servicer shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary sole activities are restricted in its articles certificate of incorporation to purchasing Receivables from the OriginatorOriginators, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activitiespurpose;
(ii) Not less than one member of Seller’s 's Board of Directors (the “Independent Directors”"INDEPENDENT DIRECTORS") shall be individuals who are not (except as members of Seller's Board of Directors) direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Seller, Servicer or any Originator or any of its their respective Affiliates. The Seller’s 's Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ ' fiduciary duty shall be to the Seller (and its creditors) and not to the Seller’s 's shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause CLAUSE (iiII) or any individual who has any other type of professional relationship with the Seller, Servicer or any Originator or any of its their respective Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for any Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s 's own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Servicer's Fee. The Seller will engage no agents other than a Servicer servicer for the Receivables, which Servicer servicer will be fully compensated for its services to the Seller by payment of the Servicing Servicer's Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator Originators or any Affiliate thereof which are not reflected in the Servicing FeeServicer's Fee or otherwise appropriately allocated between such Persons based on usage in accordance with the next sentence. To the extent, if any, that the Seller and the Originator Originators or any Affiliate thereof share items of expenses not reflected in the Servicing Servicer's Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator Atrium shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s 's operating expenses will not be paid by any Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person promptly to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s 's books and records will be maintained separately from those of Servicer, Atrium and the Originator Originators or any respective Affiliate thereof;
(ix) Any financial statements of the Servicer, Atrium, any Originator or KAR any respective Affiliate thereof which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s 's accounts receivable;
(x) The Seller’s 's assets will be maintained in a manner that facilitates their identification identifies and segregation segregates them from those of Servicer, Atrium, the Originator Originators and any Affiliate thereofof their respective Affiliates;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator Servicer, Atrium, the Originators and any respective Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of Servicer, Atrium, the Originator Originators or any respective Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which Servicer, Atrium, the Originator Originators or any respective Affiliate thereof (other than AFC Atrium in its capacity as Servicer) has independent access and shall not pool any access. None of the Seller’s 's funds will at any time be pooled with any funds of Servicer, Atrium, the Originator Originators or any respective Affiliate thereof;
(xii) The Seller shall pay to the Originator Originators the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to Servicer, Atrium, the Originator Originators or any respective Affiliate thereof (other than the Seller)thereof; and
(xiii) The Seller will maintain arm’s 's length relationships with Servicer, Atrium, the Originator Originators and any respective Affiliate thereofthereof and, except as contemplated by the Transaction Documents, will have no other dealings, contractual, financial or otherwise, among themselves. The Any Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such servicesservices (except in the case of any Originator acting as a Sub-Servicer whose fee is payable by the Servicer out of the Servicing Fee). Neither the Seller nor the any Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Atrium Companies Inc)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the PurchasersThe Company shall: ----------------------------
(a) maintain its own deposit account or accounts, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFCany Affiliate, with commercial banking institutions and ensure that the funds of the Company will not be diverted to any other Person or for other than corporate uses of the Company, nor will such funds be commingled with the funds of any Seller or any other Subsidiary or Affiliate of any Seller; provided, that notwithstanding the foregoing, Collections in respect of -------- Purchased Receivables and Receivables may be deposited into the Designated Accounts and the Concentration Account;
(b) to the extent that it shares the same officers or other employees as any of its stockholders or Affiliates, the Originator salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees;
(c) to the extent that it jointly contracts with any of its stockholders or Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that the Company contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods or services are provided, and is not a division each such entity shall bear its fair share of AFC such costs. All material transactions between the Company and any of its Affiliates, whether currently existing or any other Person. Without limiting hereafter entered into, shall be only on an arm's length basis, it being understood and agreed that the generality of transactions contemplated in the foregoing and in addition to and consistent with Transaction Documents meet the covenant set forth in paragraph (a) requirements of this Exhibit IVclause (c);
(d) maintain a principal executive office at a separate address from the address of WMI and its Affiliates; provided, that segregated offices in -------- the Seller same building shall constitute separate addresses for purposes of this clause (d). To the extent that the Company and AFC shall take such actions as any of its stockholders or Affiliates have offices in the same location, there shall be required in order that:a fair and appropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses;
(ie) The Seller will be a limited purpose corporation whose primary activities are restricted issue separate financial statements prepared not less frequently than quarterly and prepared in accordance with GAAP;
(f) conduct its affairs in its own name and strictly in accordance with its articles of incorporation to purchasing Receivables from the Originatorand observe all necessary, entering into agreements for the servicing of such Receivablesappropriate and customary corporate formalities, selling undivided interests in such Receivables including, but not limited to, holding all regular and conducting such other activities as it deems necessary or special stockholders' and directors' meetings appropriate to carry out authorize all corporate action, keeping separate and accurate minutes of its primary activitiesmeetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(iig) Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect assume or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers guarantee any of the Originator liabilities of any Seller, any Servicer or any Affiliate of its Affiliates. The Seller’s Board of Directors shall not approveany thereof; and
(h) take, or take any refrain from taking, as the case may be, all other action actions that are necessary to cause be taken or not to be taken in order to (x) ensure that the commencement of a voluntary case or other proceeding assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct in all material respects with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (Company and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative comply with those procedures described in such provisions which are applicable to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the otherCompany.
Appears in 1 contract
Sources: Receivables Transfer and Servicing Agreement (Waste Management Inc /De/)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a division of AFC or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, I\5470084.2 having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any I\5470084.2 Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 1 contract
Sources: Receivables Purchase Agreement (KAR Auction Services, Inc.)
Separate Corporate Existence. Each The Transferor shall: (i) maintain its corporate existence and remain in good standing under the laws of the Seller and AFC hereby acknowledges that the PurchasersState of Delaware; (ii) observe all procedures required by its certificate of formation, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Transferor LLC Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a division of AFC or any other Person. Without limiting the generality laws of the foregoing State of Delaware; (iii) ensure that (x) the business and in addition to and consistent with affairs of the covenant set forth in paragraph (a) Transferor are at all times managed by or under the direction of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s Board of Directors Directors, (the “Independent Directors”y) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approvehave duly authorized all corporate actions requiring such authorization and, or take any other (z) when necessary, the Transferor shall have obtained proper authorization for corporate action to cause from its stockholder; (iv) at all times includes at least two Independent Managers (as such term is defined in the commencement Transferor LLC Agreement); (v) maintain separate corporate records and books of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect account from those of any decision Affiliate and keep correct and complete books and records of account and minutes of the type described meetings and other proceedings of its stockholder and Board of Directors; (vi) pay the fair market rent for any office space located in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be office of any Affiliate and a director fair share of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions any overhead costs; (vii) maintain separate bank accounts and books of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any account from those of its Affiliates and ensure that its funds and other assets shall at all times be readily distinguishable from the funds and other assets of its Affiliates and not be commingled with the funds or any management personnel other assets of any such Person or Affiliate its Affiliates; (viii) pay from its own separate funds all material liabilities incurred by it, including material operating and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member administrative expenses; provided that the organizational expenses of the business community, having a sound reputation Transferor and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses will not documentation with respect to the issuance of the Certificates or notes that it may issue from time to time may be paid by Originator an Affiliate. No general overhead or administrative expenses of any Affiliate thereof shall be charged or otherwise allocated to the Transferor unless such general overhead or administrative expenses are directly attributable to services provided to or for the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those account of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the otherTransferor.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Partners First Receivables Funding Corp)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers(a) Maintain its deposit account or accounts, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFCthe Buyer and ensure that its funds will not be diverted to the Buyer, nor will such funds be commingled with the funds of the Buyer;
(b) To the extent that it shares any officers or other employees with the Buyer, the Originator salaries of and any the expenses related to providing benefits to such officers and other Personemployees shall be fairly allocated among it and the Buyer, and is not a division of AFC or any other Person. Without limiting it and the generality Buyer shall bear their fair shares of the foregoing salary and in addition to benefit costs associated with all such common officers and consistent employees;
(c) To the extent that it jointly contracts with the covenant Buyer to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly between it and the Buyer and it and the Buyer shall bear their fair shares of such costs. To the extent that it contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of the Buyer, the costs incurred in so doing shall be fairly allocated between it and the Buyer in proportion to the benefit of the goods or services each is provided, and it and the Buyer shall bear their fair shares of such costs. All material transactions between it and the Buyer, whether currently existing or hereafter entered into, shall be only on an arm's length basis;
(d) Maintain office space separate from the office space of the Buyer (but which may be located at the same address as the Buyer). To the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses;
(e) Issue financial statements separate from any financial statements issued by the Buyer;
(f) Not assume or guarantee any of the liabilities of the Buyer; and
(g) Take, or refrain from taking, as the case may be, all other actions that are necessary to be taken or not to be taken in order (x) to ensure that the assumptions and factual recitations set forth in paragraph the opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ delivered pursuant to the Schedule of Documents with respect to issues of substantive consolidation and true-sale and absolute transfer, remain true and correct with respect to it (a) of this Exhibit IVand, to the Seller extent within its control, to ensure that the assumptions and AFC shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests factual recitations set forth in such Receivables opinions remain true and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding correct with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditorsBuyer) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled comply with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts procedures described in such provisions that are applicable to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the otherit.
Appears in 1 contract
Separate Corporate Existence. Each of the The Seller and AFC hereby ---------------------------- acknowledges that the Purchasers, the Agent and the Purchaser Agents Securitization Parties are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from AFCthe Servicer, the Guarantor and each Originator. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFCthe Servicer, the Guarantor, any Originator and any other Person, and is not a division of AFC the Servicer, the Guarantor, any Originator or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC shall take such actions ------------- ---------- as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles certificate of incorporation to purchasing Receivables from the OriginatorOriginators, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of the Seller’s 's Board of Directors (the “"Independent Directors”Director") shall be individuals an individual -------------------- who are is not direct, indirect or beneficial stockholdersstockholder, officersofficer, directorsdirector, employeesemployee, affiliatesaffiliate, associatesassociate, customers customer or suppliers supplier of the Servicer, the Guarantor or any Originator or any of its their Affiliates, except that such member may be an independent director of a limited purpose bankruptcy-remote Affiliate of the Servicer, the Guarantor or an Originator. The Seller’s 's Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors Director shall approve the taking of such action in writing prior to the taking of such action. The To the extent permissible under Colorado law, the Independent Directors’ Director's fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s 's shareholders in respect of any decision of the type described in the preceding sentence. In the event an the Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of ----------- professional relationship with the Servicer, the Guarantor, any Originator or any of its Affiliates thereof or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for the Servicer, the Guarantor, any Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s 's own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Servicer's Fee. The Seller will engage no agents other than a Servicer servicer for the Pool Receivables, which Servicer servicer will be fully compensated for its services to the Seller by payment of the Servicing Servicer's Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and Seller, the Guarantor, any Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Servicer's Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator Mail-Well I Corporation shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s 's operating expenses will not be paid by the Servicer, the Guarantor, any Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s 's books and records will be maintained separately from those of the Servicer, the Guarantor, any Originator or any Affiliate thereof;
(ix) Any financial statements of the Servicer, the Guarantor, any Originator or KAR any Affiliate thereof which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s 's accounts receivable;
(x) The Seller’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of the Servicer, the Guarantor, any Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Servicer, the Guarantor, any Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Guarantor, any Originator or any Affiliate thereofthereof (other than in their capacity as Servicer or sub-servicer). The Seller shall not maintain joint bank accounts or other depository accounts to which the Guarantor, any Originator or any Affiliate thereof (other than AFC in its their capacity as ServicerServicer or sub-servicer) has independent access and shall not pool any access. None of the Seller’s 's funds will at any time be pooled with any funds of the Servicer, the Guarantor or any Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Servicer, the Guarantor or applicable Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Servicer, the Guarantor, any Originator or any Affiliate thereof (other than the Seller)thereof; and
(xiii) The Seller will maintain arm’s 's length relationships with the Servicer, the Guarantor, any Originator and any Affiliate thereof. The Servicer, the Guarantor, any Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Servicer, the Guarantor, any Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
(xiv) The Seller shall not cause, or take any action, or omit to take any action, that would be inconsistent with the Facts and Assumptions.
Appears in 1 contract
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Insurer, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a division of AFC or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph PARAGRAPH (aA) of this Exhibit EXHIBIT IV, the Seller and AFC shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s 's Board of Directors (the “Independent Directors”"INDEPENDENT DIRECTORS") shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s 's Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ ' fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s 's shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s 's own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s 's operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s 's books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR ADESA which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s 's accounts receivable;
(x) The Seller’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s 's funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s 's length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 1 contract
Separate Corporate Existence. Each of the Seller and AFC hereby The Borrower acknowledges that the Purchasers, the Agent and the Purchaser Agents Lender Parties are entering into the transactions contemplated by the this Agreement and the Transaction other Loan Documents in reliance upon the Seller’s identity of the Subsidiaries of the Borrower as a legal entity entities separate from AFCthe Borrower. Therefore, from and after the date hereofAccordingly, the Seller Borrower shall take, and AFC shall take cause its Subsidiaries to take, all reasonable steps to continue the Seller’s identity identities of its Subsidiaries as a separate legal entity entities, and to make it apparent to third Persons that the Seller is an entity its Subsidiaries are entities with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a division of AFC or any other PersonBorrower. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IVforegoing, the Seller and AFC Borrower shall take such actions as shall be required in order that:
(ia) For each Subsidiary of the Borrower in which the Borrower directly owns, beneficially or of record, Shares of Capital Stock, at least one director or officer of the Borrower shall be a person who is not a director or officer of such Subsidiary.
(b) The Seller books and records of each Subsidiary of the Borrower shall be maintained separately from those of the Borrower and each of its other Subsidiaries.
(c) The assets of each Subsidiary of the Borrower will be maintained in a limited purpose corporation whose primary activities are restricted manner that facilitates their identification and segregation from those of the Borrower and its other Subsidiaries.
(d) The Borrower and each Subsidiary of the Borrower shall strictly observe corporate formalities. The Borrower and each of its Subsidiaries will conduct their respective businesses in its articles their own respective names. The business and affairs of incorporation to purchasing Receivables from the Originator, entering into agreements for Borrower and each Subsidiary shall be managed by or under the servicing direction of the board of directors of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;Person.
(iie) Not less than one member Funds or other assets of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers Subsidiaries of the Originator or any of its Affiliates. The Seller’s Board of Directors shall Borrower will not approve, or take any other action to cause the commencement of a voluntary case or other proceeding be commingled with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision those of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who Borrower and its other Subsidiaries (it being understood that such restriction shall not be an individual within interpreted to forbid intercompany loans and Advances that have been properly documented and accounted for on the proscriptions books and records of each relevant entity, made in compliance with corporate formalities, and otherwise made in compliance with this Agreement and the other Loan Documents).
(f) The operating expenses of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate Borrower and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member each Subsidiary of the business community, having a sound reputation and experience relative to the duties to Borrower will be performed paid by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing FeePerson. To the extent, if any, that the Seller Borrower and the Originator or any Affiliate thereof of its Subsidiaries share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional servicesexpenses, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator and each such Person shall pay all expenses relating to the preparation, negotiation, execution and delivery its allocated share of the Transaction Documents, including, without limitation, legal and other fees;such
(vig) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any Annual financial statements of the Originator or KAR Borrower which are consolidated to include the Seller its Subsidiaries will contain detailed notes clearly stating that the Seller each such Subsidiary is a corporate or similar entity separate corporate entity from the Borrower and has sold ownership interests in its other Subsidiaries, and that the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those stock of each direct Subsidiary of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with Borrower has been pledged to secure the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the otherObligations.
Appears in 1 contract
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the PurchasersPurchaser, the Agent Liquidity Banks and the Purchaser Agents Administrator, are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from AFCParent. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps specifically required by this Agreement or by the Purchaser or Administrator to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator Parent and any other Person, and is not a division of AFC Parent or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant other covenants set forth in paragraph (a) of this Exhibit IVherein, the Seller and AFC shall take such actions as shall be required in order that:
(ia) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles certificate of incorporation to purchasing Receivables or otherwise acquiring from the OriginatorParent, and owning, holding, granting security interests, or selling interests, in Pool Assets, entering into agreements for the servicing and financing of such ReceivablesPool Assets, selling undivided interests in such Receivables entering into interest rate agreements, spread account agreements and similar documents and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;.
(iib) Not less than one member of Seller’s 's Board of Directors (the “"Independent Directors”Director") shall be individuals an individual who are is not a direct, indirect or beneficial stockholdersstockholder, officersofficer, directorsdirector, employeesemployee, affiliatesaffiliate, associatesassociate, customers or suppliers supplier of the Originator Seller or any of its Affiliates, except that the Independent Director may be an independent director on the Board of Directors of a direct or indirect "bankruptcy remote" subsidiary of Charming Shoppes. The certificate of incorporation of Seller shall provide that (i) Seller’s 's Board of Directors shall not approve, or take any other action to cause the commencement of filing of, a voluntary case or other proceeding bankruptcy petition with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors Director shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (action and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with such provision cannot be amended without the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member prior written consent of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;.
(iiic) No The Independent Director shall not at any time serve as a trustee in bankruptcy for Originator Seller, Parent or any Affiliate thereof;.
(ivd) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts 's funds for services provided to the Seller except as provided herein in respect of the Servicing FeeSeller. The Seller will engage no agents other than its attorneys, auditors and other professionals, and a Servicer servicer for the ReceivablesPool Assets, which Servicer servicer will be fully compensated for its services to the Seller by payment of the Servicing Servicer's Fee;.
(ve) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivablesthe Pool Assets. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer's Fee pursuant hereto. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator Parent (or any other Affiliate thereof thereof) which are not reflected in the Servicing Servicer's Fee. To the extent, if any, that the Seller and the Originator Parent (or any other Affiliate thereof thereof) share items of expenses not reflected in the Servicing Servicer's Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator Parent shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal legal, agency and other fees;.
(vif) The Seller’s Seller will pay its own operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;expenses.
(viig) The Seller will have its own separate mailing address post office box and stationery;.
(viiih) The Seller’s 's books and records will be maintained separately from those of the Originator Parent and any other Affiliate thereof.
(i) All financial statements of Parent or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which thereof that are consolidated to include the Seller will contain detailed notes clearly stating that the (A) all of Seller's assets are owned by Seller, and (B) Seller is a separate corporate entity and has sold ownership with creditors who have received security interests in the Seller’s accounts receivable;'s assets.
(xj) The Seller’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and Parent or any Affiliate thereof;.
(xik) The Seller will strictly observe corporate formalities in its dealings with the Originator and Parent or any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator Parent or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator Parent or any Affiliate thereof (other than AFC Parent in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;access.
(xiil) The Seller shall pay to the Originator the marginal increase will maintain arm's-length relationships with Parent (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof Any Person that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such servicesservices it renders or otherwise furnishes to Seller. Neither Except as contemplated in the Transaction Documents neither Seller nor the Originator or any Affiliate thereof Parent will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Charming Shoppes Inc)
Separate Corporate Existence. Each of the Seller and AFC the Servicer hereby acknowledges that the Purchasers, the Agent Purchaser Agents and the Purchaser Agents Administrator are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFCthe Servicer and the Originator. Therefore, from and after the date hereof, the Seller and AFC the Servicer shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFCthe Servicer, the Originator and any other Person, and is not a division of AFC the Servicer or the Originator or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC the Servicer shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles certificate of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for the Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Servicer’s Fee. The Seller will engage no agents other than a Servicer servicer for the Receivables, which Servicer servicer will be fully compensated for its services to the Seller by payment of the Servicing Servicer’s Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Servicer’s Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Servicer’s Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator Pilgrim’s Pride shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses will not be paid by the Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR any Affiliate thereof which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC Pilgrim’s Pride in its capacity as Servicer) has independent access and shall not pool any access. None of the Seller’s funds will at any time be pooled with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller)thereof; and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Pilgrims Pride Corp)
Separate Corporate Existence. Each of the Seller and AFC The Depositor hereby ---------------------------- acknowledges that the Purchasers, the Agent and the Purchaser Agents are Trust is entering into the transactions contemplated by the Agreement and the Transaction Basic Documents in reliance upon the Seller’s Depositor's identity as a legal entity separate from AFCDFS and the Transferor. Therefore, from and after the date hereof, the Seller and AFC Depositor shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that each of DFS and the Seller Transferor is an entity with assets and liabilities distinct from those of AFC, the Originator Depositor and any other Person, Affiliate and that the Depositor is not a division of AFC DFS or the Transferor or any other Person. Without limiting the generality foregoing, the Depositor shall (and shall cause each of DFS and the foregoing Transferor to) operate and conduct its business and otherwise act in addition to and a manner which is consistent with the covenant set forth in paragraph following:
(a) The Depositor shall maintain its own stationery and other business forms separate from those of this Exhibit IVany other Person (including DFS and the Transferor) and shall conduct business in its own name.
(b) The Depositor shall not need to maintain any office space of its own (apart from the office space used by Servicer) as part of its operations. If the Depositor utilizes any office space, such office space shall be clearly demarcated as being allocated to Depositor.
(c) DFS or the Transferor may issue consolidated financial statements that shall include the Depositor, but such financial statements shall contain a footnote to the effect that DFS contributed certain Receivables to the Transferor, the Seller Transferor then contributed the Receivables to the Depositor and AFC the Depositor in turn contributed the Receivables to the Trust. Separate financial statements shall also be prepared for the Depositor. In addition to the aforementioned footnote to any consolidated financial statement, DFS, the Transferor and the Depositor shall take such certain actions as to disclose publicly the Depositor's separate existence and the transactions contemplated hereby, including, without limitation, through the filing of UCC financing statements. Neither DFS, the Transferor nor the Depositor has concealed or shall conceal from any interested party any transfers contemplated by the Basic Documents, although Obligors shall not be required affirmatively informed in order that:the first instance of the transfer of their obligations.
(id) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables Transferor has caused and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action continue to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director elected to the board of directors of the SellerDepositor, there and the Depositor compensates the Independent Director.
(e) The Depositor shall not have its own employees, and the Depositor's business relating to the Receivables shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual primarily conducted through DFS as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur However, any material allocations of direct, indirect or overhead expenses for items shared between among the Seller Depositor, the Transferor and the Originator or any Affiliate thereof which DFS that are not reflected in included as part of the Servicing Fee. To the extent, if any, that the Seller Fee are and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, shall be made among such as legal, auditing and other professional services, such expenses will be allocated entities to the extent practical on the basis of actual use or the value of services rendered, rendered and otherwise on a basis reasonably related to the actual use or the value of services rendered.
(f) DFS, the Depositor and the Transferor shall maintain their assets and liabilities in such a manner that it being understood that Originator shall pay all expenses relating is not costly or difficult to segregate, ascertain or otherwise identify the preparation, negotiation, execution individual assets and delivery liabilities of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately Depositor from those of the Originator others or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of any other Person, including any other subsidiary or other Affiliate of DFS. Except as set forth below, the Originator Depositor shall maintain its own books of account and corporate records separate from DFS, the Transferor, and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds other subsidiary or other assets Affiliate of the Seller will DFS. The Depositor shall not be commingled commingle or pool its funds (or other assets) or liabilities with those of DFS, the Originator Transferor, or any other subsidiary or Affiliate thereofof DFS except as specifically provided in this Agreement with respect to the temporary commingling of collections of the Receivables and except with respect to the retention by DFS, in its capacity as Servicer, of the books and records pertaining to the Receivables. However, DFS shall not generally make the books and records relating to the Receivables available to any of the creditors of DFS or other interested persons, and in the rare instance when it does so, DFS simultaneously also shall provide the marked computer records and shall make such books and records available for the sole purpose of permitting creditors and other interested parties of DFS to verify the existence of DFS and performance of its duties as Servicer. The Seller Depositor shall not maintain joint bank accounts or other depository accounts to which DFS, the Originator Transferor, or any other subsidiary or Affiliate thereof of DFS (other than AFC DFS solely in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;access.
(xiig) The Seller Each of DFS and the Transferor, on the one hand, and the Depositor, on the other hand, shall pay to the Originator the marginal increase (orstrictly observe corporate formalities, in the absence of such increase, the market amount of its portion) of the premium payable including with respect to any insurance policy that covers its dealings with the Seller other. Specifically, no transfer of assets between DFS and any Affiliate thereofthe Transferor on the one hand, but and the Seller Depositor, on the other hand, shall notbe made without adherence to corporate formalities.
(h) Neither the Depositor, directly on the one hand, or indirectlyDFS, be named or enter into an agreement to be namedthe Transferor, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any other subsidiary or other Affiliate thereof (of DFS, on the other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator hand, shall be, or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will shall hold itself out to be be, responsible for the debts of the other or other, or, except as provided in this Agreement with respect to the duties of the Servicer, the decisions or actions respecting the daily business and affairs of the other, except as contemplated by the expense reimbursement and indemnification provisions of the Basic Documents and any underwriting agreement executed in connection therewith.
(i) All distributions made by the Depositor to the Transferor as its sole shareholder shall be made in accordance with applicable law.
(j) Any other transactions between DFS and the Depositor or DFS and the Transferor permitted by (although not expressly provided for in the Basic Documents) shall be fair and equitable to DFS, the Depositor and the Transferor, shall be the type of transaction that would be entered into by a prudent Person in the position of DFS, the Depositor or the Transferor vis a vis each other, --- - --- and shall be on terms that are at least favorable as may be obtained from a Person who is not DFS, the Depositor or the Transferor.
(k) The Depositor is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy covering the property of DFS, the Transferor or any other subsidiary or other Affiliate of DFS except for an insurance policy with respect to the liability of directors and officers maintained by Deutsche Bank AG for the benefit of its direct and indirect subsidiaries.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Deutsche Recreational Asset Funding Corp)
Separate Corporate Existence. Each of the Seller and AFC The Issuer hereby acknowledges that the PurchasersTrustee, the Agent Administrative Agent, and the Purchaser Agents are Noteholders are, and will be, entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s Issuer's identity as a legal entity separate from AFCthe Sellers, the Servicer and any other Person. Therefore, from and after the date hereof, the Seller and AFC Issuer shall take all reasonable steps to continue the Seller’s its identity as a separate legal entity and to make it apparent to third Persons that the Seller Issuer is an entity with assets and liabilities distinct from those of AFCthe Servicer, the Originator Sellers and any other Person, and that the Issuer is not a division of AFC the Servicer, any of the Sellers or any other Person. Without In that regard, and without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IVany manner, the Seller and AFC Issuer shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in maintain its articles own board of incorporation to purchasing Receivables from the Originatordirectors, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than maintain at least two directors and one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals principal corporate officer who are is not a direct, indirect or beneficial stockholdersstockholder, officersofficer, directorsdirector, employeesemployee, affiliatesaffiliate, associatesassociate, customers customer or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect supplier of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be Stone Person nor a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel relative of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law schoolthereof, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as nor a trustee in bankruptcy for Originator or any Affiliate thereof;
other Stone Person, (iviii) Any employeemaintain separate and clearly delineated office space evidenced by a written lease, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for maintain its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that which facilitates their identification and segregation from those of the Originator any other Stone Person, and any Affiliate thereof;
(xi) The Seller maintain a separate telephone number which will strictly observe corporate formalities be answered only in its dealings own name, (iv) conduct all intercompany transactions with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to Stone Persons on terms which the Originator or Issuer reasonably believes to be on an arm's-length basis, (v) not guarantee any Affiliate thereof (obligation of any other than AFC in its capacity as Servicer) has independent access and shall not pool Stone Person, nor have any of the Seller’s funds at its obligations guaranteed by any time with any funds of the Originator Stone Person or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be as responsible for the debts of the other any Stone Person or for the decisions or actions respecting with respect to the daily business and affairs of any other Stone Person, (vi) shall not, except as otherwise expressly acknowledged under the other.Transaction Documents, permit the commingling or pooling of its funds or other assets with the assets of any other Stone Person, (vii) maintain separate deposit and other bank accounts to which no other Stone Person (other than as Servicer) has any access, (viii) maintain financial records which are separate from those of any other Stone Person, (ix) compensate all employees, consultants and agents, or reimburse Stone, from the Issuer's own funds, for services provided to the Issuer by such employees, consultants and agents, (x) have agreed with Stone Container and the other Sellers to allocate among themselves shared corporate operating services and expenses which are not reflected in the Servicer Fee (including without limitation the services of shared employees, consultants and agents and reasonable legal and auditing
Appears in 1 contract
Sources: Master Trust Indenture and Security Agreement (Stone Container Corp)
Separate Corporate Existence. Each of the Seller and AFC the Servicer hereby acknowledges that the Purchasers, Purchaser and the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from AFCthe Servicer and any Originator. Therefore, from and after the date hereof, the Seller and AFC the Servicer shall take all reasonable steps to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFCthe Servicer, the any Originator and any other Person, and is not a division of AFC the Servicer or any Originator or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC the Servicer shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles certificate of incorporation to purchasing Receivables from the OriginatorOriginators, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s 's Board of Directors (the “"Independent Directors”") shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the any Originator or any of its Affiliates. The Seller’s 's Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ ' fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s 's shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the any Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for any Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s 's own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Servicer's Fee. The Seller will engage no agents other than a Servicer servicer for the Receivables, which Servicer servicer will be fully compensated for its services to the Seller by payment of the Servicing Servicer's Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly Servicer's fee at a market rate based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the any Originator or any Affiliate thereof which are not reflected in the Servicing Servicer's Fee. To the extent, if any, that the Seller and the any Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Servicer's Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator Imperial shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s 's operating expenses will not be paid by any Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s 's books and records will be maintained separately from those of the each Originator or any Affiliate thereof;
(ix) Any financial statements of the any Originator or KAR any Affiliate thereof which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s 's accounts receivable;
(x) The Seller’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of the any Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the any Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the any Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the any Originator or any Affiliate thereof (other than AFC IDI in its capacity as Servicer) has independent access and shall not pool any access. None of the Seller’s 's funds will at any time be pooled with any funds of the any Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Imperial Sugar Co /New/)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a division of AFC or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;; 722297046 96333265 I\14053553.1
(ii) Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;; 722297046 96333265 I\14053553.1
(vi) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 1 contract
Sources: Receivables Purchase Agreement (KAR Auction Services, Inc.)
Separate Corporate Existence. Each of the Guarantor, Seller and AFC SCI hereby acknowledges acknowledge that the Purchasers, the Agent Purchaser and the Purchaser Agents Administrative Agent are entering into the transactions contemplated by the this Agreement and the Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from AFCthe other Affiliated Parties. Therefore, from and after the date hereofGuarantor, the Seller and AFC SCI shall take all reasonable the steps described in this Section 7.04 and any other steps that the Administrative Agent reasonably requests to continue the Seller’s 's identity as such a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator other Affiliated Parties and those of any other Person, and is not a division of AFC the other Affiliated Parties or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph :
(a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from SCI and SCI Colorado pursuant to the OriginatorSecond Tier Sale Agreements, entering into agreements for the servicing of such Receivables, selling undivided interests in such the Receivables to the Administrative Agent for the benefit of Purchaser, and to the Parallel Purchasers (or the Bank Agent for their benefit), and conducting such other activities as it reasonably deems necessary or appropriate to carry out its primary activities;
(iib) Not less than one member At least two members of Seller’s 's Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent DirectorAffiliated Party;
(iiic) No Independent Director director or officer of Seller shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereofother Affiliated Party;
(ivd) Any employee, consultant or agent of the Seller will be compensated from paid by the Seller’s own bank accounts Manager for services provided to the Seller Seller, which payment shall be charged to Seller's account, except as provided herein in this Agreement in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer (if an Affiliated Party) will be fully compensated for its services to the Seller by payment of the Servicing Fee, and the Manager pursuant to the Management Agreement, which Manager's fees shall not exceed $10,000 in any calendar year;
(ve) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead liabilities other than its liabilities hereunder and under the other Agreement Documents, liabilities to the independent directors not exceeding $10,000 at any time outstanding (although annual compensation may exceed $10,000 per year), plus $1,000 for each meeting in excess of three per year, plus out-of-pocket expenses for items shared between approved by the Seller Manager and the Originator or any Affiliate thereof which are not reflected other liabilities incurred in the Servicing Fee. To the extent, if any, ordinary course of business that the Seller do not exceed $3,000 due and the Originator or owing at any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other feesone time;
(vif) The Seller’s 's operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such paymentsother Affiliated Party;
(viig) The Seller will have its own separate mailing address address, stationery and, if used, bank checks and, if it uses premises leased, owned or occupied by any other Affiliated Party, its portion of such premises will be defined and stationeryseparately identified;
(viiih) The Seller’s 's books and records will be maintained separately from those of the Originator or any Affiliate thereofevery other Affiliated Party;
(ixi) Any financial statements of the Originator or KAR any other Affiliated Party which are consolidated to include the Seller will contain detailed notes clearly stating that (A) all of Seller's assets are owned by the Seller, and (B) Seller is a separate corporate entity and has sold ownership interests with its own separate creditors which will be entitled to be satisfied out of Seller's assets prior to any value in the Seller becoming available to Seller’s accounts receivable's equity holders;
(xj) The Seller’s assets of Seller will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereofother Affiliated Party;
(xik) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereofeach other Affiliated Party, and funds or other assets of the Seller will not be commingled or pooled with those of the Originator or any Affiliate thereof. The other Affiliated Party;
(l) Seller shall not maintain joint bank accounts with any other Affiliated Party or other depository accounts to which the Originator or any Affiliate thereof other Affiliated Party (other than AFC SCI or any Originator in its capacity as ServicerServicer or Subservicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereofaccess;
(xiim) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or and shall not enter into an any agreement to be named, named as a direct or contingent beneficiary or loss payee, under payee on any such insurance policy, with respect to policy covering the property of any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); andAffiliated Party;
(xiiin) The Seller will maintain arm’s 's length relationships with the Originator and any Affiliate thereofeach other Affiliated Party. The Originator or any Affiliate thereof that Any other Affiliated Party which renders or otherwise furnishes services or merchandise to the Seller will be compensated by the Seller at market rates for such services. services or merchandise; and
(o) Neither Seller, on the Seller one hand, nor any other Affiliated Party, on the Originator or any Affiliate thereof other hand, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 1 contract
Separate Corporate Existence. Each of the Seller and AFC the Servicer hereby acknowledges that the Purchasers, Purchaser and the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from AFCthe Servicer and the Originator. Therefore, from and after the date hereof, the Seller and AFC the Servicer shall take all reasonable steps to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFCthe Servicer, the Originator and any other Person, and is not a division of AFC the Servicer or the Originator or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph PARAGRAPH (a) of this Exhibit EXHIBIT IV, the Seller and AFC the Servicer shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles certificate of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s 's Board of Directors (the “Independent Directors”"INDEPENDENT DIRECTORS") shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s 's Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ ' fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s 's shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause CLAUSE (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s 's own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Servicer's Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Servicer's Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Servicer's Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Servicer's Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s 's operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s 's books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR any Affiliate thereof which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s 's accounts receivable;
(x) The Seller’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC Vanstar in its capacity as Servicer) has independent access and shall not pool any access. None of the Seller’s 's funds will at any time be pooled with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller)thereof; and
(xiii) The Seller will maintain arm’s 's length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the any Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 1 contract
Separate Corporate Existence. Each of the Seller Transferor and AFC IKON ---------------------------- Capital hereby acknowledges acknowledge that the Purchasers, Transferee and the Agent and the Purchaser Agents are entering into the transactions contemplated by the this Agreement and the Transaction Documents in reliance upon the Seller’s Transferor's identity as a legal entity separate from AFCthe other Affiliated Parties. Therefore, from Transferor and after the date hereof, the Seller and AFC IKON Capital shall take all reasonable the steps described in this Section 7.04 and any other steps that the Agent ------------ reasonably requests to continue the Seller’s Transferor's identity as such a separate legal entity and to make it apparent to third Persons that the Seller Transferor is an entity with assets and liabilities distinct from those of AFC, the Originator other Affiliated Parties and those of any other Person, and is not a division of AFC the other Affiliated Parties or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph :
(a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order that:
(i) The Seller Transferor will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing accepting transferred Receivables from the OriginatorIKON Capital, entering into agreements for the servicing of such Receivables, selling transferring undivided interests in such Receivables the Receivables, and conducting such other activities as it reasonably deems necessary or appropriate to carry out its primary activitiesactivities and entering into similar arrangements with other Persons;
(iib) Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect No director or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers officer of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director Transferor shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereofother Affiliated Party;
(ivc) Any employee, consultant or agent of the Seller Transferor will be compensated from paid by the Seller’s own bank accounts Manager for services provided to the Seller Transferor, which payment shall be charged to Transferor's account, except as provided herein in this Agreement in respect of the Servicing FeeFee and in the Old Line Agreement for the servicing fee paid thereunder. The Seller Transferor will engage no agents other than a Servicer for the Receivables, which Servicer (if an Affiliated Party) will be fully compensated for its services to the Seller Transferor by payment of the Servicing FeeFee and the servicing fee paid under the Old Line Agreement, and the Manager pursuant to the Management Agreement, which Manager's fees shall not exceed $10,000 in any calendar year;
(vd) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s Transferor's operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such paymentsother Affiliated Party;
(viie) The Seller Transferor will have its own separate mailing address address, stationery and, if used, bank checks and, if it uses premises leased, owned or occupied by any other Affiliated Party, its portion of such premises will be defined and stationeryseparately identified;
(viiif) The Seller’s Transferor's books and records will be maintained separately from those of the Originator or any Affiliate thereofevery other Affiliated Party;
(ixg) Any financial statements of the Originator or KAR any other Affiliated Party which are consolidated to include the Seller Transferor will contain detailed notes clearly stating that (A) all of the Seller Transferor's assets are owned by the Transferor, and (B) the Transferor is a separate corporate entity and has sold ownership interests with its own separate creditors which will be entitled to be satisfied out of the Transferor's assets prior to any value in the Seller’s accounts receivableTransferor becoming available to the Transferor's equity holders;
(xh) The Seller’s assets of the Transferor will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereofother Affiliated Party;
(xii) The Seller Transferor will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereofeach other Affiliated Party, and funds or other assets of the Seller Transferor will not be commingled or pooled with those of the Originator or any Affiliate thereof. other Affiliated Party;
(j) The Seller Transferor shall not maintain joint bank accounts with any other Affiliated Party or other depository accounts to which the Originator or any Affiliate thereof other Affiliated Party (other than AFC IKON Capital in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereofaccess;
(xiik) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller Transferor shall not, directly or indirectly, be named or and shall not enter into an any agreement to be named, named as a direct or contingent beneficiary or loss payee, under payee on any such insurance policy, with respect to policy covering the property of any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); andAffiliated Party;
(xiiil) The Seller Transferor will maintain arm’s 's length relationships with the Originator and any Affiliate thereofeach other Affiliated Party. The Originator or any Affiliate thereof that Any other Affiliated Party which renders or otherwise furnishes services or merchandise to the Seller Transferor will be compensated by the Seller Transferor at market rates for such services. services or merchandise; and
(m) Neither the Seller Transferor, on the one hand, nor any other Affiliated Party, on the Originator or any Affiliate thereof other hand, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 1 contract
Sources: Receivables Transfer Agreement (Alco Standard Corp)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a division of AFC or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order thatBorrowers will:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables Maintain one or more deposit accounts, each separate from the Originatordeposit accounts of any Affiliate, entering into agreements with commercial banking institutions and ensure that its funds will not be diverted to any other Person or for other than its corporate uses, nor will such funds be commingled with the servicing funds of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary any of its stockholders or appropriate to carry out any Subsidiary or Affiliate of any of its primary activitiesstockholders;
(ii) Not less than one member To the extent that it shares the same officers or other employees as any of Seller’s Board its shareholders or Affiliates, the salaries of Directors (and the “Independent Directors”) expenses related to providing benefits to such officers and other employees shall be individuals who are not directfairly allocated among such entities, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers and each such entity shall bear its fair share of the Originator salary and benefit costs associated with all such common officers and employees;
(iii) To the extent that it jointly contracts with any of its shareholders or Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that it contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods or services are provided, and each such entity shall bear its fair share of such costs;
(iv) Enter into all material transactions between it and any of its Affiliates. The Seller, whether currently existing or hereafter entered into, only on an arm’s Board of Directors shall not approve, or take any other action to cause length basis;
(v) Maintain office space separate from the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect office space of any decision of its stockholders or Affiliates other than its wholly-owned Subsidiaries. To the type described extent that it and any of its stockholders or Affiliates have offices in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Sellersame location, there shall be selected a replacement Independent Director who fair and appropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses;
(vi) Conduct its affairs strictly in accordance with its Certificate of Incorporation, and observe all necessary, appropriate and customary corporate formalities, including, but not limited to, holding all regular and special shareholders’ and directors’ meetings appropriate to authorize all corporate actions, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be an individual within the proscriptions taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts; and
(vii) Not assume or guarantee any of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any liabilities of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator stockholders or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the otherwholly-owned subsidiaries.
Appears in 1 contract
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC The Borrower shall take all reasonable steps (including, without limitation, all steps that the Agent may from time to continue time reasonably request) to maintain the Seller’s Borrower's identity as a separate legal entity from AFL or any of its Affiliates and to make it apparent manifest to third Persons parties that the Seller Borrower is an entity with assets and liabilities distinct from those of AFC, the Originator AFL and any each other Person, and is not a division of AFC or any other PersonAffiliate thereof. Without limiting the generality of the foregoing foregoing, the Borrower shall:
(a) conduct business correspondence in its own name, hold regular meetings of, or obtain regular written consents from, its Board of Directors and in addition to maintain appropriate books and consistent with the covenant records;
(b) except as set forth in paragraph its certificate of incorporation, not permit any limitation on the authority of its own directors and officers to conduct its business and affairs in accordance with their independent business judgment, and shall not authorize or suffer any Person other than its own directors and officers to act on its behalf with respect to matters (aother than matters customarily delegated to others under powers of attorney) of this Exhibit IV, the Seller for which a corporation's own directors and AFC shall take such actions as shall officers would customarily be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activitiesresponsible;
(iic) Not less than one member of Seller’s Board of Directors (subject to the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers terms of the Originator Custodial Agreement, maintain or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action cause to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision maintained by an agent of the type described in Borrower under the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director Borrower's control physical possession of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of all its Affiliates or any management personnel of any such Person or Affiliate books and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Directorrecords;
(iiid) No Independent Director shall at any time serve as a trustee in bankruptcy maintain capitalization adequate for Originator or any Affiliate thereofthe conduct of its business;
(ive) Any employee, consultant or agent account for and manage its liabilities separately from those of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents any other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction DocumentsPerson, including, without limitation, legal payment of all payroll and other feesadministrative expenses and taxes from its own assets;
(vif) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have maintain its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained assets separately from those of any other Person;
(g) maintain offices through which its business is conducted separate from those of AFL and any Affiliates of AFL (PROVIDED that, to the Originator extent that AFL and any of its Affiliates have offices in the same location, there shall be a fair and appropriate allocation of overhead costs and expenses among them, and each such entity shall bear its fair share of such expenses);
(h) not commingle its funds with those of AFL or any Affiliate thereof;
(ix) Any financial statements of AFL or any Affiliates of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay Borrower except to the Originator the marginal increase (orextent contemplated herein, in the absence of such increase, the market amount of or use its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (funds for other than the Seller)Borrower's uses; and
(xiiii) The Seller will maintain arm’s length relationships with the Originator and ensure that any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts financial reports required of the other or the decisions or actions respecting the daily business Borrower shall comply with GAAP and affairs shall be issued separately from, but may be consolidated with, any reports prepared by any of the otherits Affiliates.
Appears in 1 contract
Sources: Receivables Financing Agreement (Arcadia Financial LTD)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take Take all reasonable steps (including, without limitation, all steps that the Funding Agent may from time to continue time reasonably request) to maintain the Seller’s 's identity as a separate legal entity from the Originator and to make it apparent manifest to third Persons parties that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any each other Person, and is not a division of AFC or any other PersonAffiliate thereof. Without limiting the generality of the foregoing and in addition to and consistent with the covenant covenants set forth in paragraph (aSections 5.1(b) of this Exhibit IVand 5.3(m), the Seller and AFC shall take such actions as shall be required in order thatshall:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted conduct business correspondence in its articles own name, hold regular meetings of, or obtain regular written consents from, its Board of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables Directors and conducting such other activities as it deems necessary or maintain appropriate to carry out its primary activitiesbooks and records;
(ii) Not less than one member of Seller’s Board of Directors (not permit any limitation on the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any authority of its Affiliates. The Seller’s Board of Directors shall not approveown directors and officers to conduct its business and affairs in accordance with their independent business judgment, or take authorize or suffer any Person other action than its own directors and officers to cause the commencement of a voluntary case or other proceeding act on its behalf with respect to the Seller matters (other than matters customarily delegated to others under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment powers of or taking possession by, attorney) for which a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall corporation's own directors and officers would customarily be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Directorresponsible;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator maintain or any Affiliate thereofcause to be maintained by an agent of the Seller under the Seller's control physical possession of all its books and records;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer maintain capitalization adequate for the Receivables, which Servicer will be fully compensated for conduct of its services to the Seller by payment of the Servicing Feebusiness;
(v) The Seller will contract with the Servicer to perform account for the Seller all operations required on a daily basis to service and manage its Receivables. The Seller will pay the Servicer a monthly fee based on the level liabilities separately from those of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction DocumentsPerson, including, without limitation, legal payment of all payroll and other feesadministrative expenses and taxes from its own assets;
(vi) The Seller’s operating expenses will not be paid segregate and identify separately all of its assets from those of any other Person (other than the commingling of Collections of Receivables as contemplated by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such paymentsReceivables Purchase Agreement and this Agreement);
(vii) The Seller will have maintain offices through which its own business is conducted separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with Affiliates of the Originator and any Affiliate thereof, and funds or other assets Affiliates of the Seller will (provided that, to the extent that the Seller and any of its Affiliates have offices in the same location, there shall be a fair and appropriate allocation of overhead costs and expenses among them, and each such entity shall bear its fair share of such expenses);
(viii) not be commingled commingle its funds with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Affiliates of the Seller shall pay except to the Originator the marginal increase (orextent contemplated herein, in the absence of such increase, the market amount of or use its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (funds for other than the Seller)'s uses; and
(xiiiix) The Seller will maintain arm’s length relationships with the Originator and ensure that any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to financial reports required of the Seller will shall comply with generally accepted accounting principles and shall be compensated issued separately from, but may be consolidated with, any reports prepared by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the otherits Affiliates.
Appears in 1 contract
Sources: Receivables Transfer Agreement (Arcadia Financial LTD)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, Lenders and the Agent and the Purchaser Agents are entering into the transactions contemplated by the this Agreement and the other Transaction Documents in reliance upon the each of Seller’s and the Purchaser’s identity as being that of a discrete legal entity entity, separate from AFCAspen. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps required to maintain and continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFCAspen, the Originator Purchaser and any other Person, and is not a division of AFC Aspen, the Purchaser or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IVforegoing, the Seller and AFC shall take such actions as shall be required in order that:
(i) The Seller will be a special-purpose limited purpose corporation liability company whose primary activities are restricted in its articles of incorporation limited liability company agreement to purchasing Receivables from owning the OriginatorTransferred Receivables, the Collections and the Related Security, entering into agreements for the servicing of such Transaction Documents to which it is a party, purchasing assets from Aspen pursuant to the Purchase and Sale Agreement, selling the Transferred Receivables, selling undivided interests in such Receivables the Collections and the Related Security under this Agreement and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s Board of Directors (the “Independent DirectorsDirector”) shall be individuals an individual who are is not, and has not been for the five years preceding the Closing Date, (i) a direct, indirect or beneficial stockholdersstockholder, officersofficer, directorsdirector (other than as a director of Seller and the Purchaser), employeesemployee, affiliatesaffiliate or associate of Seller, associates, customers Purchaser or suppliers of the Originator Aspen or any of their Affiliates, (ii) a customer or supplier of Seller, the Purchaser or Aspen or any of their Affiliates (other than a supplier to which Seller, the Purchaser or Aspen and their Affiliates has paid no more than $50,000 in Aspen’s and its Affiliates’ then-current fiscal year or any of the three immediately preceding fiscal years); or (iii) a customer or supplier of Seller, the Purchaser, Aspen or any of their Affiliates whose (A) sales to Seller, the Purchaser, Aspen or any of their Affiliates, in the case of a supplier, represent a material portion of such supplier’s gross sales; or (B) accounts receivable owing to the Seller, the Purchaser, Aspen or any of their Affiliates, in the case of a customer, represent a material portion of such customer’s total accounts receivable. The limited liability company agreement of Seller shall provide that (i) Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of filing of, a voluntary case or other proceeding bankruptcy petition with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors Director shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (, and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with such provision cannot be amended without the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member prior written consent of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No The Independent Director shall not at any time serve as a trustee in bankruptcy for Originator the Seller, the Purchaser, Aspen or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the funds of Seller’s own bank accounts , as appropriate, for services provided to the Seller except Seller. Except as otherwise provided herein in respect of the Servicing Fee. The herein, Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Feeagents;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between among Seller, the Seller Purchaser and the Originator Aspen (or any other Affiliate thereof which are not reflected in the Servicing Feethereof). To the extent, if any, that Seller, the Seller Purchaser and the Originator Aspen (or any other Affiliate thereof thereof) share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator Aspen shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses will not be paid by Originator the Purchaser, Aspen or any other Affiliate thereof unless except as permitted under the Seller shall have agreed in writing with such Person terms of this Agreement or the Loan Agreement or otherwise consented to reimburse such Person for any such paymentsby the Agent;
(vii) The Seller will have its own separate mailing address phone extension and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or Purchaser, Aspen and any other Affiliate thereof;
(ix) Any All audited financial statements of the Originator Purchaser, Aspen or KAR which any Affiliate thereof that are consolidated to include the Seller will contain detailed notes clearly stating that (A) all of Seller’s assets are owned by Seller, (B) all of the Purchaser’s assets are owned by the Purchaser, (C) Seller is a separate corporate legal entity and has sold ownership interests in (D) the Seller’s accounts receivablePurchaser is a separate legal entity;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of Aspen, the Originator and Purchaser or any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and Purchaser, Aspen or any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator Purchaser, Aspen or any Affiliate thereof. The Other than the Collection Account, Seller shall not maintain joint bank accounts or other depository accounts to which the Originator Purchaser, Aspen or any Affiliate thereof (other than AFC Aspen in its capacity as Servicer) has independent access and shall not pool any access. Other than to the extent on deposit in the Collection Accounts or as otherwise contemplated hereunder, none of the Seller’s funds will at any time be pooled with any funds of the Originator Aspen or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s arm’s-length relationships with the Originator Purchaser, Aspen and any Affiliate thereof. The Originator or any Affiliate thereof Any Person that renders or otherwise furnishes services to the Seller will be compensated by the Seller thereby at market rates for such servicesservices it renders or otherwise furnishes thereto except as otherwise provided in this Agreement. Neither Except as contemplated in the Transaction Documents, Seller nor the Originator or any Affiliate thereof will be or will not hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of Aspen or the other.Purchaser; and
(xiii) Seller will take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion letter issued by ▇▇▇▇▇▇ ▇’▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, as counsel for Seller, in connection with the closing of this Agreement and relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times..
Appears in 1 contract
Sources: Purchase and Resale Agreement (Aspen Technology Inc /De/)
Separate Corporate Existence. Each of the Seller and AFC The Depositor hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are Trust is entering into the transactions contemplated by the Agreement and the Transaction Basic Documents in reliance upon the SellerDepositor’s identity as a legal entity separate from AFCE*Trade Consumer Finance and the Transferor. Therefore, from and after the date hereof, the Seller and AFC Depositor shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that each of E*Trade Consumer Finance and the Seller Transferor is an entity with assets and liabilities distinct from those of AFC, the Originator Depositor and any other Person, Affiliate and that the Depositor is not a division of AFC E*Trade Consumer Finance or the Transferor or any other Person. Without limiting the generality foregoing, the Depositor shall (and shall cause each of E*Trade Consumer Finance and the foregoing Transferor to) operate and conduct its business and otherwise act in addition to and a manner which is consistent with the covenant set forth in paragraph following:
(a) The Depositor shall maintain its own stationery and other business forms separate from those of this Exhibit IVany other Person (including E*Trade Consumer Finance and the Transferor) and shall conduct business in its own name.
(b) The Depositor shall not need to maintain any office space of its own (apart from the office space used by Servicer) as part of its operations. If the Depositor utilizes any office space, such office space shall be clearly demarcated as being allocated to Depositor.
(c) E*Trade Consumer Finance or the Transferor may issue consolidated financial statements that shall include the Depositor, but such financial statements shall contain a footnote to the effect that E*Trade Consumer Finance sold certain Receivables to the Transferor, the Seller Transferor then sold the Receivables to the Depositor and AFC the Depositor in turn transferred the Receivables to the Trust. Separate financial statements shall also be prepared for the Depositor. In addition to the aforementioned footnote to any consolidated financial statement, E*Trade Consumer Finance, the Transferor and the Depositor shall take such certain actions as to disclose publicly the Depositor’s separate existence and the transactions contemplated hereby, including through the filing of UCC financing statements. None of E*Trade Consumer Finance, the Transferor and the Depositor has concealed or shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables conceal from any interested party any transfers contemplated by the OriginatorBasic Documents, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who although Obligors shall not be an individual within affirmatively informed in the proscriptions first instance of the first sentence transfer of this clause their obligations.
(iid) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who There shall be at all times at least one (x1) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member Independent Director to be elected to the board of directors of the Depositor, and the Depositor shall compensate the Independent Director.
(e) The Depositor shall not have its own employees, and the Depositor’s business community, having a sound reputation and experience relative relating to the duties to Receivables shall be performed by such individual primarily conducted through E*Trade Consumer Finance as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur However, any material allocations of direct, indirect or overhead expenses for items shared between among the Seller Depositor, the Transferor and the Originator or any Affiliate thereof which E*Trade Consumer Finance that are not reflected in included as part of the Servicing Fee. To the extent, if any, that the Seller Fee are and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, shall be made among such as legal, auditing and other professional services, such expenses will be allocated entities to the extent practical on the 35 E*TRADE 2004-1 Transfer and Servicing Agreement basis of actual use or value of services rendered and otherwise on a basis reasonably related to actual use or the value of services rendered.
(f) E*Trade Consumer Finance, the Depositor and the Transferor shall maintain their assets and liabilities in such a manner that it is not costly or difficult to segregate, ascertain or otherwise on a basis reasonably related to identify the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution individual assets and delivery liabilities of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately Depositor from those of the Originator others or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of any other Person, including any other subsidiary or other Affiliate of E*Trade Consumer Finance. Except as set forth below, the Originator Depositor shall maintain its own books of account and corporate records separate from E*Trade Consumer Finance, the Transferor, and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds other subsidiary or other assets Affiliate of the Seller will E*Trade Consumer Finance. The Depositor shall not be commingled commingle or pool its funds (or other assets) or liabilities with those of E*Trade Consumer Finance, the Originator Transferor, or any other subsidiary or Affiliate thereofof E*Trade Consumer Finance except as specifically provided in this Agreement with respect to the temporary commingling of collections of the Receivables and except with respect to the retention by E*Trade Consumer Finance, in its capacity as Servicer, of the books and records pertaining to the Receivables. However, E*Trade Consumer Finance shall not generally make the books and records relating to the Receivables available to any of the creditors of E*Trade Consumer Finance or other interested persons, and in the rare instance when it does so, E*Trade Consumer Finance simultaneously also shall provide the marked computer records and shall make such books and records available for the sole purpose of permitting creditors and other interested parties of E*Trade Consumer Finance to verify the existence of E*Trade Consumer Finance and performance of its duties as Servicer. The Seller Depositor shall not maintain joint bank accounts or other depository accounts to which E*Trade Consumer Finance, the Originator Transferor, or any other subsidiary or Affiliate thereof of E*Trade Consumer Finance (other than AFC E*Trade Consumer Finance solely in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;access.
(xiig) The Seller Each of E*Trade Consumer Finance and the Transferor, on the one hand, and the Depositor, on the other hand, shall pay to the Originator the marginal increase (orstrictly observe corporate formalities, in the absence of such increase, the market amount of its portion) of the premium payable including with respect to any insurance policy that covers its dealings with the Seller other. Specifically, no transfer of assets between E*Trade Consumer Finance and any Affiliate thereofthe Transferor on the one hand, but and the Seller Depositor, on the other hand, shall notbe made without adherence to corporate formalities.
(h) Neither the Depositor, directly on the one hand, or indirectlyE*Trade Consumer Finance, be named or enter into an agreement to be namedthe Transferor, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any other subsidiary or other Affiliate thereof (of E*Trade Consumer Finance, on the other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator hand, shall be, or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will shall hold itself out to be be, responsible for the debts of the other or other, or, except as provided in this Agreement with respect to the duties of the Servicer, the decisions or actions respecting the daily business and affairs of the other, except as contemplated by the expense reimbursement and indemnification provisions of the Basic Documents and any underwriting agreement executed in connection therewith.
(i) All distributions made by the Depositor to it shareholder(s) shall be made in accordance with applicable law.
(j) Any other transactions between E*Trade Consumer Finance and the Depositor or E*Trade Consumer Finance and the Transferor permitted by (although not expressly provided for in the Basic Documents) shall be fair and equitable to E*Trade Consumer Finance, the Depositor and the Transferor, shall be the type of transaction that would be entered into by a prudent Person in the position of E*Trade Consumer Finance, the Depositor or the Transferor vis a vis each other, and shall be on terms that are at least favorable as may be obtained from a Person who is not E*Trade Consumer Finance, the Depositor or the Transferor.
(k) The Depositor is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy covering the property of E*Trade Consumer Finance, the Transferor or any other subsidiary or other Affiliate of E*Trade Consumer Finance except for any insurance policy with respect to the liability of directors and officers maintained by the Depositor (or any of its Affiliates) for the benefit of its direct and indirect subsidiaries.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Deutsche Recreational Asset Funding Corp)
Separate Corporate Existence. Each of the The Seller and AFC hereby acknowledges that the Purchasers, the Agent Trustee and the Purchaser Agents are Investor Certificateholders are, and will be, entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFCthe Originator, Servicer and any other Person. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity maintain its existence as a corporation separate legal entity and to make it apparent to third Persons that apart from the Seller is an entity with assets and liabilities distinct from those of AFCOriginator, the Originator Servicer, and any other Person, and is not a division Affiliate of AFC the Originator or any other Personthe Servicer. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IVforegoing, the Seller and AFC shall take such actions as shall be required in order thatshall:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in (a) observe the corporate procedures required by its articles certificate of incorporation to purchasing Receivables from incorporation, its by-laws and the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers corporate law of the Originator or any State of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction DocumentsDelaware, including, without limitation, legal holding separate director and shareholder meetings from those of any other Person and otherwise ensuring at all times that it is maintained as a separate corporate entity from any other Person and (b) not amend or modify any provision of its Certificate of Incorporation or by-laws unless the Rating Agency Condition shall have been satisfied with respect to such amendment or modification;
(a) ensure that its Board of Directors duly authorizes all of its corporate actions, and (b) keep correct and complete books and records of account separate from those of any other Person, and correct and complete minutes of the meetings and other feesproceedings of its stockholders and Board of Directors, and (c) where necessary, obtain proper authorization from its directors or stockholders, as appropriate, for corporate action;
(iii) provide for its operating expenses and liabilities from its own funds and maintain deposit accounts and other bank accounts separate from those of the Originator, the Servicer, or any of their respective Affiliates;
(iv) act solely in its corporate name and through its duly authorized officers or agents in the conduct of its business and ensure that neither the Originator nor the Servicer nor any of their respective Affiliates controls any corporate decisions made by it;
(v) to the extent that it obtains any services from the Originator or the Servicer or any of their respective Affiliates, ensure that the terms of such arrangements are comparable to those that would be obtained in an arm’s-length transaction;
(vi) The Seller’s operating expenses will ensure that its assets are not be paid by Originator commingled with those of the Originator, the Servicer, or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such paymentsother Person;
(vii) The Seller will have its own maintain separate mailing address corporate records and stationerybooks of account from those of the Originator, the Servicer or any other Person;
(viii) The Seller’s books and records will be maintained separately from those not conduct any business or engage in any activities other than in accordance with its Certificate of the Originator or any Affiliate thereofIncorporation;
(ixa) Any financial statements not hold itself out, or permit itself to be held out, as having agreed to pay, or as being liable for, the debts of the Originator, the Servicer, or any other Person; (b) maintain an arm’s-length relationship with the Originator or KAR which are consolidated and the Servicer and their respective Affiliates with respect to include any transactions between itself and such other Person; and (c) continuously maintain as official records the Seller will contain detailed notes clearly stating that resolutions, agreements and other instruments underlying the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivabletransactions contemplated by this Agreement;
(x) The Seller’s assets will be maintained select and at all times maintain as its Independent Director (as defined in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds Certificate of Incorporation) a Person who meets the Originator or any Affiliate thereof;
following qualifications (xiiwhich qualifications are in addition to those set forth in the its Certificate of Incorporation): the Independent Director shall have (a) The Seller shall pay prior experience as an independent director for a corporation whose charter documents require the unanimous written consent of all independent directors thereof before such corporation could consent to the Originator the marginal increase institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy, and (orb) at least three years of employment experience with one or more entities that provide, in the absence ordinary course of such increasetheir respective businesses, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereofadvisory, but the Seller shall not, directly management or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes placement services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator issuers of securitization or any Affiliate thereof will be structured finance instruments, agreements or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the othersecurities.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Alliance Data Systems Corp)
Separate Corporate Existence. Each (a) Except as set forth in the Transaction Documents, maintain its own deposit account or accounts, separate from those of any Affiliate, with commercial banking institutions and ensure that the funds of the Company will not be diverted to any other Person or for other than corporate uses of the Company, nor will such funds be commingled with the funds of a Seller or any Subsidiary or Affiliate of a Seller provided that the foregoing restriction shall not preclude the Company from lending its excess cash balances to a Seller or any Subsidiary or Affiliate of the Seller for investment (which may include inter-Affiliate loans made by the Seller or any Subsidiary or Affiliate of the Seller) on a pooled basis as part of the cash management system maintained by a Seller for its consolidated group so long as all such transactions are properly reflected on the books and AFC hereby acknowledges records of the Company and the Sellers (and any Subsidiary or Affiliate of the Sellers, if applicable);
(b) To the extent that it shares the same officers or other employees as any of its stockholders or Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees;
(c) To the extent that it jointly contracts with any of its stockholders or Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that the Purchasers, Company contracts or does business with vendors or service providers where the Agent goods and services provided are partially for the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those benefit of AFC, the Originator and any other Person, and is not a division of AFC or any other Person. Without limiting the generality of the foregoing and costs incurred in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC shall take such actions as so doing shall be required in order that:
(i) The Seller will be a limited purpose corporation fairly allocated to or among such entities for whose primary activities benefit the goods or services are restricted in provided, and each such entity shall bear its articles of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing fair share of such Receivables, selling undivided interests in such Receivables costs. All material transactions between the Company and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The , whether currently existing or hereafter entered into, shall be only on an arm’s length basis;
(d) Maintain office space separate from the office space of the Sellers and their Affiliates (but which may be located at the same address as a Seller or one of a Seller’s Board Affiliates). To the extent that the Company and any of Directors its stockholders or Affiliates have offices in the same location, there shall be a fair and appropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses;
(e) Issue separate financial statements prepared not approveless frequently than annually and prepared in accordance with GAAP;
(f) Conduct its affairs strictly in accordance with its organizational documents and observe all necessary, appropriate and customary corporate formalities, including, but not limited to, holding regular and special stockholders’ and directors, meetings appropriate to authorize all corporate action, keeping separate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(g) Not assume or guarantee any of the liabilities of the Sellers, the Servicer or any Affiliate thereof; and
(h) Take, or take any refrain from taking, as the case may be, all other action actions that are necessary to cause be taken or not to be taken in order to (x) ensure that the commencement of a voluntary case or other proceeding assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (Company and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative comply with those procedures described in such provisions which are applicable to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the otherCompany.
Appears in 1 contract
Sources: Pooling Agreement (Bungeltd)
Separate Corporate Existence. Each of the Seller Transferor and AFC IKON Capital ---------------------------- hereby acknowledges acknowledge that the Purchasers, Transferee and the Agent and the Purchaser Agents are entering into the transactions contemplated by the this Agreement and the Transaction Documents in reliance upon the Seller’s Transferor's identity as a legal entity separate from AFCthe other Affiliated Parties. Therefore, from Transferor and after the date hereof, the Seller and AFC IKON Capital shall take all reasonable the steps described in this Section 7.04 and any other steps that the Agent reasonably requests to continue ------------ the Seller’s Transferor's identity as such a separate legal entity and to make it apparent to third Persons that the Seller Transferor is an entity with assets and liabilities distinct from those of AFC, the Originator other Affiliated Parties and those of any other Person, and is not a division of AFC the other Affiliated Parties or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph :
(a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order that:
(i) The Seller Transferor will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing accepting transferred Receivables from the OriginatorIKON Capital, entering into agreements for the servicing of such Receivables, selling transferring undivided interests in such Receivables the Receivables, and conducting such other activities as it reasonably deems necessary or appropriate to carry out its primary activitiesactivities and entering into similar arrangements with other Persons;
(iib) Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect No director or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers officer of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director Transferor shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereofother Affiliated Party;
(ivc) Any employee, consultant or agent of the Seller Transferor will be compensated from paid by the Seller’s own bank accounts Manager for services provided to the Seller Transferor, which payment shall be charged to Transferor's account, except as provided herein in this Agreement in respect of the Servicing FeeFee and in the Old Line Agreement for the servicing fee paid thereunder. The Seller Transferor will engage no agents other than a Servicer for the Receivables, which Servicer (if an Affiliated Party) will be fully compensated for its services to the Seller Transferor by payment of the Servicing FeeFee and the servicing fee paid under the Old Line Agreement, and the Manager pursuant to the Management Agreement, which Manager's fees shall not exceed $10,000 in any calendar year;
(vd) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s Transferor's operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such paymentsother Affiliated Party;
(viie) The Seller Transferor will have its own separate mailing address address, stationery and, if used, bank checks and, if it uses premises leased, owned or occupied by any other Affiliated Party, its portion of such premises will be defined and stationeryseparately identified;
(viiif) The Seller’s Transferor's books and records will be maintained separately from those of the Originator or any Affiliate thereofevery other Affiliated Party;
(ixg) Any financial statements of the Originator or KAR any other Affiliated Party which are consolidated to include the Seller Transferor will contain detailed notes clearly stating that (A) all of the Seller Transferor's assets are owned by the Transferor, and (B) the Transferor is a separate corporate entity and has sold ownership interests with its own separate creditors which will be entitled to be satisfied out of the Transferor's assets prior to any value in the Seller’s accounts receivableTransferor becoming available to the Transferor's equity holders;
(xh) The Seller’s assets of the Transferor will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereofother Affiliated Party;
(xii) The Seller Transferor will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereofeach other Affiliated Party, and funds or other assets of the Seller Transferor will not be commingled or pooled with those of the Originator or any Affiliate thereof. other Affiliated Party;
(j) The Seller Transferor shall not maintain joint bank accounts with any other Affiliated Party or other depository accounts to which the Originator or any Affiliate thereof other Affiliated Party (other than AFC IKON Capital in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereofaccess;
(xiik) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller Transferor shall not, directly or indirectly, be named or and shall not enter into an any agreement to be named, named as a direct or contingent beneficiary or loss payee, under payee on any such insurance policy, with respect to policy covering the property of any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); andAffiliated Party;
(xiiil) The Seller Transferor will maintain arm’s 's length relationships with the Originator and any Affiliate thereofeach other Affiliated Party. The Originator or any Affiliate thereof that Any other Affiliated Party which renders or otherwise furnishes services or merchandise to the Seller Transferor will be compensated by the Seller Transferor at market rates for such services. services or merchandise; and
(m) Neither the Seller Transferor, on the one hand, nor any other Affiliated Party, on the Originator or any Affiliate thereof other hand, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 1 contract
Sources: Receivables Transfer Agreement (Ikon Office Solutions Inc)
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges ---------------------------- that the PurchasersPurchaser, the Agent Liquidity Banks and the Purchaser Agents Administrator, are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from AFCParent. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps specifically required by this Agreement or by the Purchaser or Administrator to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator Parent and any other Person, and is not a division of AFC Parent or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant other covenants set forth in paragraph (a) of this Exhibit IVherein, the Seller and AFC shall take such actions as shall be required in order that:
(ia) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles certificate of incorporation to purchasing Receivables or otherwise acquiring from the OriginatorParent, and owning, holding, granting security interests, or selling interests, in Pool Assets, entering into agreements for the servicing and financing of such ReceivablesPool Assets, selling undivided interests in such Receivables entering into interest rate agreements, spread account agreements and similar documents and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;.
(iib) Not less than one member of Seller’s 's Board of Directors (the “"Independent Directors”Director") shall be individuals an individual who are is not a -------------------- direct, indirect or beneficial stockholdersstockholder, officersofficer, directorsdirector, employeesemployee, affiliatesaffiliate, associatesassociate, customers or suppliers supplier of the Originator Seller or any of its Affiliates, except that the Independent Director may be an independent director on the Board of Directors of a direct or indirect "bankruptcy remote" subsidiary of Charming Shoppes. The certificate of incorporation of Seller shall provide that (i) Seller’s 's Board of Directors shall not approve, or take any other action to cause the commencement of filing of, a voluntary case or other proceeding bankruptcy petition with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors Director shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (action and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with such provision cannot be amended without the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member prior written consent of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;.
(iiic) No The Independent Director shall not at any time serve as a trustee in bankruptcy for Originator Seller, Parent or any Affiliate thereof;.
(ivd) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts 's funds for services provided to the Seller except as provided herein in respect of the Servicing FeeSeller. The Seller will engage no agents other than its attorneys, auditors and other professionals, and a Servicer servicer for the ReceivablesPool Assets, which Servicer servicer will be fully compensated for its services to the Seller by payment of the Servicing Servicer's Fee;.
(ve) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivablesthe Pool Assets. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer's Fee pursuant hereto. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator Parent (or any other Affiliate thereof thereof) which are not reflected in the Servicing Servicer's Fee. To the extent, if any, that the Seller and the Originator Parent (or any other Affiliate thereof thereof) share items of expenses not reflected in the Servicing Servicer's Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator Parent shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal legal, agency and other fees;.
(vif) The Seller’s Seller will pay its own operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;expenses.
(viig) The Seller will have its own separate mailing address post office box and stationery;.
(viiih) The Seller’s 's books and records will be maintained separately from those of the Originator Parent and any other Affiliate thereof.
(i) All financial statements of Parent or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which thereof that are consolidated to include the Seller will contain detailed notes clearly stating that the (A) all of Seller's assets are owned by Seller, and (B) Seller is a separate corporate entity and has sold ownership with creditors who have received security interests in the Seller’s accounts receivable;'s assets.
(xj) The Seller’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and Parent or any Affiliate thereof;.
(xik) The Seller will strictly observe corporate formalities in its dealings with the Originator and Parent or any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator Parent or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator Parent or any Affiliate thereof (other than AFC Parent in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;access.
(xiil) The Seller shall pay to the Originator the marginal increase will maintain arm's-length relationships with Parent (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof Any Person that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such servicesservices it renders or otherwise furnishes to Seller. Neither Except as contemplated in the Transaction Documents neither Seller nor the Originator or any Affiliate thereof Parent will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Charming Shoppes Inc)
Separate Corporate Existence. Each of the Amphenol and Seller hereby acknowledge that Purchaser and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the this Agreement and the Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from AFCServicer, Amphenol, and the Originators. Therefore, from and after the date hereof, the Seller and AFC Amphenol shall take all reasonable steps to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFCServicer, Amphenol, the Originator Originators and any other Person, and is not a division of AFC Servicer, Amphenol, any Originator or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IVSection 7.01(b), the Seller and AFC Amphenol shall take such actions actions, and Amphenol shall cause the Originators to take such actions, as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles certificate of incorporation to purchasing Receivables from the OriginatorOriginators, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables Participations, making Originator Loans and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s 's Board of Directors (the “"Independent Directors”") shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator any Amphenol Person or any of its Affiliates. The Seller’s 's Board of Directors shall not approve, or take any other action to cause cause, the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, by a receiver, liquidator, assignee, trustee, custodian, custodian or other similar official for the Seller unless in each case all of the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ ' fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s 's shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator any Amphenol Person or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereofAmphenol Person;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s 's own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Servicer's Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Servicer's Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof Amphenol Person which are not reflected in the Servicing Servicer's Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof Amphenol Person share items of expenses not reflected in the Servicing Servicer's Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator Amphenol shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction DocumentsDocuments and the Liquidity Agreement, including, without limitation, legal legal, commitment, agency and other fees;
(vi) The Seller’s 's operating expenses will not be paid by Originator or any Affiliate thereof Amphenol Person unless the Seller shall have agreed in writing with such Amphenol Person to reimburse such Amphenol Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s 's books and records will be maintained separately from those of the Originator or any Affiliate thereofevery other Amphenol Person;
(ix) Any financial statements of the Originator or KAR any Amphenol Person which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s 's accounts receivable;
(x) The Seller’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereofother Amphenol Person;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereofeach Amphenol Person, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereofAmphenol Person. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof Amphenol Person (other than AFC Amphenol in its capacity as ServicerServicer or any other Originator in its capacity as a Servicer Person) has independent access and shall not pool any access. None of the Seller’s 's funds will at any time be pooled with any funds of the Originator or any Affiliate thereofother Amphenol Person;
(xii) The Seller shall pay to the Originator appropriate Amphenol Person the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereofother Amphenol Person, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); andAmphenol Person;
(xiii) The Seller will maintain arm’s 's length relationships with the Originator and any Affiliate thereofeach Amphenol Person. The Originator or any Affiliate thereof Any Amphenol Person that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. ; and
(xiv) Neither the Seller nor the Originator or any Affiliate thereof Amphenol Person will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Amphenol Corp /De/)
Separate Corporate Existence. Each of the Guarantor, Seller and AFC SCI hereby acknowledges acknowledge that the Purchasers, the Agent each Purchaser and the Purchaser Agents Administrative Agent are entering into the transactions contemplated by the this Agreement and the Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from AFCthe other Affiliated Parties. Therefore, from and after the date hereofGuarantor, the Seller and AFC SCI shall take all reasonable the steps described in this Section 7.04 and any other steps that the Administrative Agent or any Purchaser reasonably requests to continue the Seller’s 's identity as such a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator other Affiliated Parties and those of any other Person, and is not a division of AFC the other Affiliated Parties or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph :
(a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the OriginatorOriginators pursuant to the Second Tier Sale Agreements or the Intermediate Sale Agreement, entering into agreements for the servicing of such Receivables, selling undivided interests in such the Receivables to the Administrative Agent for the benefit of the Purchasers, and conducting such other activities as it reasonably deems necessary or appropriate to carry out its primary activities;
(iib) Not less than one member At least two members of Seller’s 's Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent DirectorAffiliated Party;
(iiic) No Independent Director director or officer of Seller shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereofother Affiliated Party;
(ivd) Any employee, consultant or agent of the Seller will be compensated from paid by the Seller’s own bank accounts Manager for services provided to the Seller Seller, which payment shall be charged to Seller's account, except as provided herein in this Agreement in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer (if an Affiliated Party) will be fully compensated for its services to the Seller by payment of the Servicing Fee, and the Manager pursuant to the Management Agreement, which Manager's fees shall not exceed $10,000 in any calendar year;
(ve) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead liabilities other than its liabilities hereunder and under the other Agreement Documents, liabilities to the independent directors not exceeding $10,000 at any time outstanding (although annual compensation may exceed $10,000 per year), plus $1,000 for each meeting in excess of three per year, plus out-of-pocket expenses for items shared between approved by the Seller Manager and the Originator or any Affiliate thereof which are not reflected other liabilities incurred in the Servicing Fee. To the extent, if any, ordinary course of business that the Seller do not exceed $3,000 due and the Originator or owing at any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other feesone time;
(vif) The Seller’s 's operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such paymentsother Affiliated Party;
(viig) The Seller will have its own separate mailing address address, stationery and, if used, bank checks and, if it uses premises leased, owned or occupied by any other Affiliated Party, its portion of such premises will be defined and stationeryseparately identified;
(viiih) The Seller’s 's books and records will be maintained separately from those of the Originator or any Affiliate thereofevery other Affiliated Party;
(ixi) Any financial statements of the Originator or KAR any other Affiliated Party which are consolidated to include the Seller will contain detailed notes clearly stating that (A) all of Seller's assets are owned by the Seller, and (B) Seller is a separate corporate entity and has sold ownership interests with its own separate creditors which will be entitled to be satisfied out of Seller's assets prior to any value in the Seller becoming available to Seller’s accounts receivable's equity holders;
(xj) The Seller’s assets of Seller will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereofother Affiliated Party;
(xik) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereofeach other Affiliated Party, and funds or other assets of the Seller will not be commingled or pooled with those of the Originator or any Affiliate thereof. The other Affiliated Party;
(l) Seller shall not maintain joint bank accounts with any other Affiliated Party or other depository accounts to which the Originator or any Affiliate thereof other Affiliated Party (other than AFC SCI or any Originator in its capacity as ServicerServicer or Subservicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereofaccess;
(xiim) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or and shall not enter into an any agreement to be named, named as a direct or contingent beneficiary or loss payee, under payee on any such insurance policy, with respect to policy covering the property of any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); andAffiliated Party;
(xiiin) The Seller will maintain arm’s 's length relationships with the Originator and any Affiliate thereofeach other Affiliated Party. The Originator or any Affiliate thereof that Any other Affiliated Party which renders or otherwise furnishes services or merchandise to the Seller will be compensated by the Seller at market rates for such services. services or merchandise; and
(o) Neither Seller, on the Seller one hand, nor any other Affiliated Party, on the Originator or any Affiliate thereof other hand, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 1 contract
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a division of AFC or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. I\11418185.1 In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;; I\11418185.1
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 1 contract
Sources: Receivables Purchase Agreement (KAR Auction Services, Inc.)
Separate Corporate Existence. Each of the Seller and AFC The Company ---------------------------- hereby acknowledges that the PurchasersLender, the Agent Liquidity Banks and the Purchaser Agents Administrator, are entering into the transactions contemplated by the this Agreement and the other Transaction Documents in reliance upon the Seller’s Company's identity as a legal entity separate from AFCAnnTaylor. Therefore, from and after the date hereof, the Seller and AFC Company shall take all reasonable steps specifically required by this Agreement or by the Lender or Administrator to continue the Seller’s Company's identity as a separate legal entity and to make it apparent to third Persons that the Seller Company is an entity with assets and liabilities distinct from those of AFCServicer, the Originator AnnTaylor and any other Person, and is not a division of AFC Servicer, AnnTaylor or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant other covenants set forth in paragraph (a) of this Exhibit IVherein, the Seller and AFC Company shall take such actions as shall be required in order that:
(ia) The Seller Company will be a limited purpose corporation whose primary activities are restricted in its articles certificate of incorporation to purchasing Receivables or otherwise acquiring from the OriginatorAnnTaylor, owning, holding, granting security interests, or selling interests, in Receivables, Contracts, Related Security and Collections from AnnTaylor, entering into agreements for the servicing and financing of such Receivablesthe Receivables Pool, selling undivided interests in such Receivables entering into interest rate agreements, spread account agreements and similar documents and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(iib) Not less than one member of Seller’s the Company's Board of Directors (the “"Independent Directors”Director") shall be individuals an -------------------- individual who are is not a direct, indirect or beneficial stockholdersstockholder, officersofficer, directorsdirector, employeesemployee, affiliatesaffiliate, associatesassociate, customers or suppliers supplier of the Originator Company or any of its Affiliates. The Seller’s certificate of incorporation of the Company shall provide that (i) the Company's Board of Directors shall not approve, or take any other action to cause the commencement of filing of, a voluntary case or other proceeding bankruptcy petition with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller Company unless in each case the Independent Directors Director shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (action and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with such provision cannot be amended without the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member prior written consent of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iiic) No The Independent Director shall not at any time serve as a trustee in bankruptcy for Originator the Company, AnnTaylor or any Affiliate thereof;
(ivd) Any employee, consultant or agent of the Seller Company will be compensated from the Seller’s own bank accounts Company's funds for services provided to the Seller except as provided herein in respect of the Servicing FeeCompany. The Seller Company will engage no agents other than its attorneys, auditors and other professionals, and a Servicer servicer for the ReceivablesReceivables Pool, which Servicer servicer will be fully compensated for its services to the Seller Company by payment of the Servicing Servicer's Fee;
(ve) The Seller Company will contract with the Servicer to perform for the Seller Company all operations required on a daily basis to service its Receivablesthe Receivables Pool. The Seller Company will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer's Fee pursuant hereto. The Seller Company will not incur any material indirect or overhead expenses for items shared between the Seller Company and the Originator AnnTaylor (or any other Affiliate thereof thereof) which are not reflected in the Servicing Servicer's Fee. To the extent, if any, that the Seller Company and the Originator AnnTaylor (or any other Affiliate thereof thereof) share items of expenses not reflected in the Servicing Servicer's Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator AnnTaylor shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal legal, agency and other fees;
(vif) The Seller’s Company's operating expenses will not be paid by Originator AnnTaylor or any other Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such paymentsthereof;
(viig) The Seller Company will have its own separate mailing address post office box and stationery;
(viiih) The Seller’s Company's books and records will be maintained separately from those of the Originator or AnnTaylor and any other Affiliate thereof;
(ixi) Any All financial statements of the Originator AnnTaylor or KAR which any Affiliate thereof that are consolidated to include the Seller Company will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(xA) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those all of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other Company's assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated are owned by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.Company, and
Appears in 1 contract
Sources: Receivables Financing Agreement (Anntaylor Stores Corp)
Separate Corporate Existence. Each of the Guarantor, Seller and AFC SCI hereby acknowledges acknowledge that the Purchasers, the Agent each Purchaser and the Purchaser Agents Administrative Agent are entering into the transactions contemplated by the this Agreement and the Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from AFCthe other Affiliated Parties. Therefore, from and after the date hereofGuarantor, the Seller and AFC SCI shall take all reasonable the steps described in this Section 7.04 and any other steps that the Administrative Agent or any Purchaser reasonably requests to continue the Seller’s 's identity as such a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator other Affiliated Parties and those of any other Person, and is not a division of AFC the other Affiliated Parties or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph :
(a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the OriginatorOriginators pursuant to the Second Tier Sale Agreements, entering into agreements for the servicing of such Receivables, selling undivided interests in such the Receivables to the Administrative Agent for the benefit of the Purchasers, and conducting such other activities as it reasonably deems necessary or appropriate to carry out its primary activities;
(iib) Not less than one member At least two members of Seller’s 's Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent DirectorAffiliated Party;
(iiic) No Independent Director director or officer of Seller shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereofother Affiliated Party;
(ivd) Any employee, consultant or agent of the Seller will be compensated from paid by the Seller’s own bank accounts Manager for services provided to the Seller Seller, which payment shall be charged to Seller's account, except as provided herein in this Agreement in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer (if an Affiliated Party) will be fully compensated for its services to the Seller by payment of the Servicing Fee, and the Manager pursuant to the Management Agreement, which Manager's fees shall not exceed $10,000 in any calendar year;
(ve) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead liabilities other than its liabilities hereunder and under the other Agreement Documents, liabilities to the independent directors not exceeding $10,000 at any time outstanding (although annual compensation may exceed $10,000 per year), plus $1,000 for each meeting in excess of three per year, plus out-of-pocket expenses for items shared between approved by the Seller Manager and the Originator or any Affiliate thereof which are not reflected other liabilities incurred in the Servicing Fee. To the extent, if any, ordinary course of business that the Seller do not exceed $3,000 due and the Originator or owing at any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other feesone time;
(vif) The Seller’s 's operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such paymentsother Affiliated Party;
(viig) The Seller will have its own separate mailing address address, stationery and, if used, bank checks and, if it uses premises leased, owned or occupied by any other Affiliated Party, its portion of such premises will be defined and stationeryseparately identified;
(viiih) The Seller’s 's books and records will be maintained separately from those of the Originator or any Affiliate thereofevery other Affiliated Party;
(ixi) Any financial statements of the Originator or KAR any other Affiliated Party which are consolidated to include the Seller will contain detailed notes clearly stating that (A) all of Seller's assets are owned by the Seller, and (B) Seller is a separate corporate entity and has sold ownership interests with its own separate creditors which will be entitled to be satisfied out of Seller's assets prior to any value in the Seller becoming available to Seller’s accounts receivable's equity holders;
(xj) The Seller’s assets of Seller will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereofother Affiliated Party;
(xik) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereofeach other Affiliated Party, and funds or other assets of the Seller will not be commingled or pooled with those of the Originator or any Affiliate thereof. The other Affiliated Party;
(l) Seller shall not maintain joint bank accounts with any other Affiliated Party or other depository accounts to which the Originator or any Affiliate thereof other Affiliated Party (other than AFC SCI or any Originator in its capacity as ServicerServicer or Subservicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereofaccess;
(xiim) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or and shall not enter into an any agreement to be named, named as a direct or contingent beneficiary or loss payee, under payee on any such insurance policy, with respect to policy covering the property of any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); andAffiliated Party;
(xiiin) The Seller will maintain arm’s 's length relationships with the Originator and any Affiliate thereofeach other Affiliated Party. The Originator or any Affiliate thereof that Any other Affiliated Party which renders or otherwise furnishes services or merchandise to the Seller will be compensated by the Seller at market rates for such services. services or merchandise; and
(o) Neither Seller, on the Seller one hand, nor any other Affiliated Party, on the Originator or any Affiliate thereof other hand, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 1 contract
Separate Corporate Existence. Each of the Seller The Servicer and AFC Borrower hereby acknowledges acknowledge that the Purchasers, Lenders and the Agent and the Purchaser Agents are entering into the transactions contemplated by the this Agreement and the other Transaction Documents in reliance upon each of the SellerBorrower’s and the Transferor’s identity as being that of a discrete legal entity entity, separate from AFCAspen. Therefore, from and after the date hereof, the Seller Borrower and AFC the Servicer shall take all reasonable steps required to maintain and continue the SellerBorrower’s identity as a separate legal entity and to make it apparent to third Persons that the Seller Borrower is an entity with assets and liabilities distinct from those of AFCAspen, the Originator Transferor and any other Person, and is not a division of AFC Aspen, the Transferor or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IVforegoing, the Seller Borrower and AFC the Servicer shall take such actions as shall be required in order that:
(i) The Seller Borrower will be a special-purpose limited purpose corporation liability company whose primary activities are restricted in its articles of incorporation limited liability company agreement to purchasing Receivables from owning the OriginatorPool Assets, entering into agreements for the servicing of such ReceivablesTransaction Documents to which it is a party, selling undivided interests in such Receivables borrowing under this Agreement and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Sellerthe Borrower’s Board of Directors (the “Independent DirectorsDirector”) shall be individuals an individual who are is not, and has not been for the five years preceding the Closing Date, (i) a direct, indirect or beneficial stockholdersstockholder, officersofficer, directors, employees, affiliates, associates, customers or suppliers director (other than as a director of the Originator Borrower and the Transferor), employee, affiliate or associate of the Borrower, the Transferor or Aspen or any of their Affiliates, (ii) a customer or supplier of the Borrower, the Transferor or Aspen or any of their Affiliates (other than a supplier to which the Borrower, the Transferor or Aspen and their Affiliates has paid no more than $50,000 in Aspen’s and its Affiliates’ then-current fiscal year or any of the three immediately preceding fiscal years); or (iii) a customer or supplier of the Borrower, the Transferor, Aspen or any of their Affiliates whose (A) sales to the Borrower, the Transferor, Aspen or any of their Affiliates, in the case of a supplier, represent a material portion of such supplier’s gross sales; or (B) accounts receivable owing to the Borrower, the Transferor, Aspen or any of their Affiliates, in the case of a customer, represent a material portion of such customer’s total accounts receivable. The Sellerlimited liability company agreement of the Borrower shall provide that (i) Borrower’s Board of Directors shall not approve, or take any other action to cause the commencement of filing of, a voluntary case or other proceeding bankruptcy petition with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller Borrower unless in each case the Independent Directors Director shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (, and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with such provision cannot be amended without the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member prior written consent of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No The Independent Director shall not at any time serve as a trustee in bankruptcy for Originator the Borrower, the Transferor, Aspen or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller Borrower will be compensated from funds of the Seller’s own bank accounts Borrower, as appropriate, for services provided to the Seller except Borrower. Except as otherwise provided herein in respect of herein, the Servicing Fee. The Seller Borrower will engage no agents other than a Servicer for the Pool Receivables, which Servicer will be fully compensated for its services rendered to the Seller Borrower by payment of the Servicing Servicer’s Fee;
(v) The Seller Borrower will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Pool Receivables. The Seller Borrower will pay the Servicer a monthly fee based on the level of Pool Receivables being managed serviced by Servicer reasonably equivalent to the Servicer. fee which would be required by an independent third-party servicer;
(vi) The Seller Borrower will not incur any material indirect or overhead expenses for items shared between among the Seller Borrower, the Transferor and the Originator Aspen (or any other Affiliate thereof which are not reflected in the Servicing Feethereof). To the extent, if any, that the Seller Borrower, the Transferor and the Originator Aspen (or any other Affiliate thereof thereof) share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator Aspen shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vivii) The SellerBorrower’s operating expenses will not be paid by Originator the Transferor, Aspen or any other Affiliate thereof unless except as permitted under the Seller shall have agreed in writing with such Person terms of this Agreement or otherwise consented to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationeryby the Agent;
(viii) The SellerBorrower will have its own separate phone extension and stationery;
(ix) The Borrower’s books and records will be maintained separately from those of the Originator or Transferor, Aspen and any other Affiliate thereof;
(ixx) Any All audited financial statements of the Originator Transferor, Aspen or KAR which any Affiliate thereof that are consolidated to include the Seller Borrower will contain detailed notes clearly stating that (A) all of the Seller Borrower’s assets are owned by the Borrower, (B) all of the Transferor’s assets are owned by the Transferor, (C) the Borrower is a separate corporate legal entity and has sold ownership interests in (D) the Seller’s accounts receivableTransferor is a separate legal entity;
(xxi) The SellerBorrower’s assets will be maintained in a manner that facilitates their identification and segregation from those of Aspen, the Originator and Transferor or any Affiliate thereof;
(xixii) The Seller Borrower will strictly observe corporate formalities in its dealings with the Originator and Transferor, Aspen or any Affiliate thereof, and funds or other assets of the Seller Borrower will not be commingled with those of the Originator Transferor, Aspen or any Affiliate thereof. The Seller Borrower shall not maintain joint bank accounts or other depository accounts to which the Originator Transferor, Aspen or any Affiliate thereof (other than AFC Aspen in its capacity as Servicer) has independent access and shall not pool access. Other than to the extent on deposit in any collection accounts or as otherwise contemplated hereunder, none of the SellerBorrower’s funds will at any time be pooled with any funds of the Originator Aspen or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller Borrower will maintain arm’s arm’s-length relationships with the Originator Transferor, Aspen and any Affiliate thereof. The Originator or any Affiliate thereof Any Person that renders or otherwise furnishes services to the Seller Borrower will be compensated by the Seller thereby at market rates for such servicesservices it renders or otherwise furnishes thereto except as otherwise provided in this Agreement. Neither Except as contemplated in the Seller Transaction Documents, neither the Borrower nor the Originator or any Affiliate thereof Aspen will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 1 contract
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers(a) Maintain its deposit account or accounts, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFCthe Company and ensure that its funds will not be diverted to the Company, nor will such funds be commingled with the funds of the Company;
(b) To the extent that it shares any officers or other employees with the Company, the Originator salaries of and any the expenses related to providing benefits to such officers and other Personemployees shall be fairly allocated among it and the Company, and is not a division of AFC or any other Person. Without limiting it and the generality Company shall bear their fair shares of the foregoing salary and in addition to benefit costs associated with all such common officers and consistent employees;
(c) To the extent that it jointly contracts with the covenant Company to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly between it and the Company and it and the Company shall bear their fair shares of such costs. To the extent that it contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of the Company, the costs incurred in so doing shall be fairly allocated between it and the Company in proportion to the benefit of the goods or services each is provided, and it and the Company shall bear their fair shares of such costs. All material transactions between it and the Company, whether currently existing or hereafter entered into, shall be only on an arm's length basis;
(d) Maintain office space separate from the office space of the Company (but which may be located at the same address as the Company). To the extent that it and the Company have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses;
(e) Issue financial statements separate from any financial statements issued by the Company;
(f) Not assume or guarantee any of the liabilities of the Company; and
(g) Take, or refrain from taking, as the case may be, all other actions that are necessary to be taken or not to be taken in order (x) to ensure that the assumptions and factual recitations set forth in paragraph the Specified Bankruptcy Opinion Provisions remain true and correct with respect to it (a) of this Exhibit IVand, to the Seller extent within its control, to ensure that the assumptions and AFC shall take such actions as shall be required factual recitations set forth in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables Specified Bankruptcy Opinion Provisions remain true and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding correct with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditorsCompany) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled comply with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts procedures described in such provisions that are applicable to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the otherit.
Appears in 1 contract
Separate Corporate Existence. Each of the Seller and AFC hereby The Borrower acknowledges that the Purchasers, the Agent and the Purchaser Agents Lender Parties are entering into the transactions contemplated by the this Agreement and the Transaction other Loan Documents in reliance upon the Seller’s identity of the Subsidiaries of the Borrower as a legal entity entities separate from AFCthe Borrower. Therefore, from and after the date hereofAccordingly, the Seller Borrower shall take, and AFC shall take cause its Subsidiaries to take, all reasonable steps to continue the Seller’s identity identities of its Subsidiaries as a separate legal entity entities, and to make it apparent to third Persons that the Seller is an entity its Subsidiaries are entities with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a division of AFC or any other PersonBorrower. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IVforegoing, the Seller and AFC Borrower shall take such actions as shall be required in order that:
(ia) For each Subsidiary of the Borrower in which the Borrower directly owns, beneficially or of record, Shares of Capital Stock, at least one director or officer of the Borrower shall be a person who is not a director or officer of such Subsidiary.
(b) The Seller books and records of each Subsidiary of the Borrower shall be maintained separately from those of the Borrower and each of its other Subsidiaries.
(c) The assets of each Subsidiary of the Borrower will be maintained in a limited purpose corporation whose primary activities are restricted manner that facilitates their identification and segregation from those of the Borrower and its other Subsidiaries.
(d) The Borrower and each Subsidiary of the Borrower shall strictly observe corporate formalities. The Borrower and each of its Subsidiaries will conduct their respective businesses in its articles their own respective names. The business and affairs of incorporation to purchasing Receivables from the Originator, entering into agreements for Borrower and each Subsidiary shall be managed by or under the servicing direction of the board of directors of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;Person.
(iie) Not less than one member Funds or other assets of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers Subsidiaries of the Originator or any of its Affiliates. The Seller’s Board of Directors shall Borrower will not approve, or take any other action to cause the commencement of a voluntary case or other proceeding be commingled with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision those of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who Borrower and its other Subsidiaries (it being understood that such restriction shall not be an individual within interpreted to forbid intercompany loans and Advances that have been properly documented and accounted for on the proscriptions books and records of each relevant entity, made in compliance with corporate formalities, and otherwise made in compliance with this Agreement and the other Loan Documents).
(f) The operating expenses of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate Borrower and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member each Subsidiary of the business community, having a sound reputation and experience relative to the duties to Borrower will be performed paid by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing FeePerson. To the extent, if any, that the Seller Borrower and the Originator or any Affiliate thereof of its Subsidiaries share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional servicesexpenses, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator and each such Person shall pay all its allocated share of such expenses relating on a current basis. To the extent, if any, that the Borrower and any of its Subsidiaries provides services to one another, the preparationprovider shall be compensated by the recipient on a current basis at fair and reasonable rates. To the extent, negotiationif any, execution and delivery that any consolidated or combined tax return is filed including any of the Transaction DocumentsBorrower or its Subsidiaries, includingeach such Person shall pay or be paid, without limitationas the case may be, legal and other fees;on a current basis an equitable share of the consolidated tax payment or refund associated therewith.
(vig) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any Annual financial statements of the Originator or KAR Borrower which are consolidated to include the Seller its Subsidiaries will contain detailed notes clearly stating that the Seller each such Subsidiary is a corporate or similar entity separate corporate entity from the Borrower and has sold ownership interests in its other Subsidiaries, and that the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those stock of each direct Subsidiary of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with Borrower has been pledged to secure the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the otherObligations.
Appears in 1 contract
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers(i) Maintain its deposit account or accounts, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFCthe Company and ensure that its funds will not be diverted to the Company, nor will such funds be commingled with the Originator and any other Person, and is not a division of AFC or any other Person. Without limiting the generality funds of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activitiesCompany;
(ii) Not less than one member To the extent that it shares any officers or other employees with the Company, the salaries of Seller’s Board of Directors (and the “Independent Directors”) expenses related to providing benefits to such officers and other employees shall be individuals who are not directfairly allocated among it and the Company, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers and it and the Company shall bear their fair shares of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding salary and benefit costs associated with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of all such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (common officers and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Directoremployees;
(iii) No Independent Director To the extent that it jointly contracts with the Company to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall at any time serve as a trustee be allocated fairly between it and the Company, and it and the Company shall bear their fair shares of such costs. To the extent that it contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of the Company, the costs incurred in bankruptcy for Originator so doing shall be fairly allocated between it and the Company in proportion to the benefit of the goods or any Affiliate thereofservices each is provided, and it and the Company shall bear their fair shares of such costs. All material transactions between it and the Company, whether currently existing or hereafter entered into, shall be only on an arm's length basis, it being understood and agreed that the transactions contemplated in the Transaction Documents meet the requirements of this clause (iii);
(iv) Any employee, consultant or agent Maintain office space separate from the office space of the Seller will Company (but which may be compensated from located at the Seller’s own bank accounts for services provided to same address as the Seller except as provided herein Company). To the extent that it and the Company have offices in respect the same location, there shall be a fair and appropriate allocation of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivablesoverhead costs between them, which Servicer will be fully compensated for and each shall bear its services to the Seller by payment fair share of the Servicing Feesuch expenses;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur Not assume or guarantee any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other feesliabilities of the Company;
(vi) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless Include in notes to its consolidated financial statements a note substantially to the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;effect of Schedule 6 hereto; and
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will Take, or refrain from taking, as the case may be, all other actions that are necessary to be maintained separately from those of the Originator taken or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR which are consolidated not to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests be taken in the Seller’s accounts receivable;
order (x) The Seller’s assets will be maintained in a manner to ensure that facilitates their identification the assumptions and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, factual recitations set forth in the absence of such increase, the market amount of its portion) of the premium payable Specified Bankruptcy Opinion Provisions remain true and correct with respect to any insurance policy it (and, to the extent within its control, to ensure that covers the Seller assumptions and any Affiliate thereof, but factual recitations set forth in the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, Specified Bankruptcy Opinion Provisions remain true and correct with respect to any amounts payable due the Company) and (y) to occurrences or events related comply with those procedures described in such provisions that are applicable to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the otherit.
Appears in 1 contract
Sources: Receivables Sale Agreement (American Axle & Manufacturing Inc)
Separate Corporate Existence. Each of the Seller and AFC the Servicer hereby acknowledges that the Purchasers, the Insurer, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from AFCthe Servicer and the Originator. Therefore, from and after the date hereof, the Seller and AFC the Servicer shall take all reasonable steps to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFCthe Servicer, the Originator and any other Person, and is not a division of AFC the Servicer or the Originator or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph PARAGRAPH (a) of this Exhibit EXHIBIT IV, the Seller and AFC the Servicer shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(ii) Not less than one member of Seller’s 's Board of Directors (the “Independent Directors”"INDEPENDENT DIRECTORS") shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s 's Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ ' fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s 's shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause CLAUSE (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s 's own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s 's operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s 's books and records will be maintained separately from those of the Originator or any Affiliate thereof;
(ix) Any financial statements of the Originator or KAR ADESA which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s 's accounts receivable;
(x) The Seller’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s 's funds at any time with any funds of the Originator or any Affiliate thereof;
(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s 's length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
Appears in 1 contract
Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take Take all reasonable steps (including, without limitation, all steps that the Agent may from time to continue time reasonably request) to maintain the Seller’s identity as a separate legal entity from TRW and to make it apparent manifest to third Persons parties that the Seller is an entity with assets and liabilities distinct from those of AFC, TRW and each other Affiliate thereof (it being understood that the Originator and any other Person, and is preceding clause does not a division require Obligors to be notified of AFC or any other Personthe Seller’s interests in the Receivables). Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IVforegoing, the Seller and AFC shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose primary activities are restricted at all times have at least one (1) “Independent Director” as defined in its articles and as required under the Seller’s certificate of incorporation to purchasing Receivables from and at least one (1) officer responsible for managing the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
Seller’s day-to-day operations; (ii) Not less than one member of Seller’s Board of Directors (maintain the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;
(vi) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;
(vii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately separate from those of the Originator or any Affiliate thereof;
and maintain records of all intercompany debits and credits and transfers of funds made by TRW on its behalf; (ixiii) Any financial statements except as otherwise contemplated under Section 2.04, use reasonable efforts to minimize the commingling of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;
(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;
(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall other Affiliate, and not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals except as otherwise contemplated hereunder with respect to the Servicer’s administration of Collections (it being understood that certain funds other than AFC Collections are currently being deposited into the Lock-Box Accounts and that none of TRW, the Seller or the Servicer shall be required to instruct the applicable payors to redirect such funds to locations other than the Lock-Box Accounts); (iv) not enter into or permit to exist any transaction (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate which is on terms that are less favorable to the Seller than those that might be obtained in an arm’s length transaction at the time from Persons who are not an Affiliate and which is not evidenced by or pursuant to a written agreement; (v) pay its capacity as Servicerown operating expenses and liabilities (including but not limited to the salaries paid to its employees and any fees paid to its directors) from its own separate assets, although TRW has independent access paid and shall not pool any may pay expenses related to the formation of the Seller’s funds at any time with any funds of ; (vi) clearly identify its office (by sign or otherwise) as being separate and distinct from the Originator offices of, or any Affiliate thereof;
space occupied by, TRW and its other affiliates even if such office space is leased or subleased from, or is on or near premises occupied by TRW or by such Affiliates and allocate fairly any overhead, if relevant, for shared office space or business facilities or equipment; (xiivii) The Seller shall pay to the Originator the marginal increase (orwill act solely in its own name, in the absence of such increasethrough its own officials or representatives where relevant, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and
(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will not hold itself out as a “division” or “part” of TRW or its Affiliates; and (viii) take all other actions reasonably necessary on its part to be responsible for the debts of the other or the decisions or actions respecting the daily operate its business and affairs of perform its obligations under the otherFacility Documents in a manner consistent with the factual assumptions described in the legal opinion delivered to the Agent pursuant to Section 3.01 hereof.
Appears in 1 contract