Separate Identity. The Issuer hereby covenants and agrees to take all actions required to maintain the Issuers status as a separate legal entity. Without limiting the foregoing, the Issuer shall: (i) conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees); (ii) compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer; (iii) (A) pay its own incidental administrative costs and expenses from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered; (iv) at all times have at least two (2) independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors; (v) maintain its books and records separate from those of any Affiliate; (vi) prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becoming (vii) not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity; (viii) not permit any of its Affiliates to pay the Issuer's operating expenses; (ix) not guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate; (x) maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name; (xi) hold regular meetings of its board of directors in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation and Bylaws are duly and validly taken; (xii) respond to any inquires with respect to ownership of a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable; (xiii) on or before March 31 of each year, beginning in 1999, the Issuer shall deliver to the Trustee an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite company formalities and conducted its business and operations in such a manner as required for the Issuer to maintain its separate company existence from any other entity; and (xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel remain true and correct at all times.
Appears in 2 contracts
Sources: Indenture and Servicing Agreement (MCM Capital Group Inc), Indenture and Servicing Agreement (MCM Capital Group Inc)
Separate Identity. The Issuer Seller hereby covenants and agrees to take all actions required to maintain the Issuers Issuer's status as a separate legal entity. Without limiting the foregoing, the Issuer Seller shall:
(i) cause the Issuer to conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such employees of the Issuer (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees);):
(ii) cause the Issuer to compensate all employees, consultants and agents directly or indirectly through reimbursement of the ServicerSeller, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the ServicerSeller, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer Seller on a basis which reflects the respective services rendered to the Issuer and the ServicerSeller;
(iii) cause the Issuer to (A) pay its own incidental administrative costs and expenses from its own funds, funds and (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the ServicerSeller, on the basis of actual use to the extent practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) cause the Issuer to at all times have at least two (2) independent directors who satisfy the definition of Independent Director directors, as provided in the Issuer's Certificate of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;
(v) cause the Issuer to maintain its books and records separate from those of any Affiliate;
(vi) cause the Issuer to prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement statements have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becoming
(vii) not commingle becoming available to its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement), equity holders and not to hold its assets in any manner that would create an appearance that such assets belong therefore to any such Affiliatecreditors, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has as the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacitycase may be;
(viii) not permit any of its Affiliates to pay the Issuer's operating expenses;
(ix) not guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of directors in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation and Bylaws are duly and validly taken;
(xii) respond to any inquires with respect to ownership of a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable;
(xiii) on or before March 31 of each year, beginning in 1999, the Issuer shall deliver to the Trustee an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite company formalities and conducted its business and operations in such a manner as required for the Issuer to maintain its separate company existence from any other entity; and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel remain true and correct at all times.
Appears in 2 contracts
Sources: Receivables Contribution Agreement (MCM Capital Group Inc), Receivables Contribution Agreement (MCM Capital Group Inc)
Separate Identity. The Issuer Servicer hereby covenants and agrees to take all actions required to maintain the Issuers Issuer's status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer shallnot satisfying any of the following:
(i) Issuer shall conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees)such;
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any 78 84 employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer;
(iii) Issuer shall (A) pay its own incidental administrative costs and expenses from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent extent; practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) Issuer shall at all times have at least two (2) independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;
(v) Issuer shall maintain its books and records separate from those of any Affiliate;
(vi) Issuer shall prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becomingbecoming available to its equity holders and therefore to any of their respective creditors, as the case may be;
(vii) Issuer shall not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) Issuer shall not permit any of its Affiliates to pay the Issuer's operating expenses;
(ix) Issuer shall not permit Issuer to guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) Issuer shall maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of directors in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation and Bylaws are duly and validly taken;
(xii) respond to any inquires with respect to ownership of a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable;
(xiii) on or before March 31 of each year, beginning in 1999, the Issuer shall deliver to the Trustee an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite company formalities and conducted its business and operations in such a manner as required for the Issuer to maintain its separate company existence from any other entity; and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel remain true and correct at all times.
Appears in 2 contracts
Sources: Indenture and Servicing Agreement (MCM Capital Group Inc), Indenture and Servicing Agreement (MCM Capital Group Inc)
Separate Identity. The Issuer Seller hereby covenants and agrees to take all actions required to maintain the Issuers Issuer's status as a separate legal entity. Without limiting the foregoing, the Issuer Seller shall:
(i) cause the Issuer to conduct all of its business, and make all communications to third parties (including all invoices (if any), lettersletter, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such (including, without limitation, by means employees of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees);:
(ii) cause the Issuer to compensate all employees, consultants and agents directly or indirectly through reimbursement of the ServicerSeller, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the ServicerSeller, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer Seller on a basis which reflects the respective services rendered to the Issuer and the ServicerSeller;
(iii) cause the Issuer to (A) pay its own incidental administrative costs and expenses from its own funds, funds and (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the ServicerSeller, on the basis of actual use to the extent practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) cause the Issuer to at all times have at least two (2) independent directors who satisfy the definition of Independent Director Directors, as provided in the Issuer's Certificate of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becoming
(vii) not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Issuer's operating expenses;
(ix) not guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of directors in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation and Bylaws are duly and validly taken;
(xii) respond to any inquires with respect to ownership of a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable;
(xiii) on or before March 31 of each year, beginning in 1999, the Issuer shall deliver to the Trustee an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite company formalities and conducted its business and operations in such a manner as required for the Issuer to maintain its separate company existence from any other entity; and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel remain true and correct at all times.
Appears in 2 contracts
Sources: Receivables Contribution Agreement (MCM Capital Group Inc), Receivables Contribution Agreement (MCM Capital Group Inc)
Separate Identity. The Issuer hereby covenants and agrees to take all actions required to maintain the Issuers Issuer's status as a separate legal entity. Without limiting the foregoing, the Issuer shall:
(i) conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees);
(ii) compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer;
(iii) (A) pay its own incidental administrative costs and expenses from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) at all times have at least two (2) independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becoming
(vii) not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Issuer's operating expenses;
(ix) not guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of directors in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation and Bylaws are duly and validly taken;
(xii) respond to any inquires with respect to ownership of a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable;
(xiii) on or before March 31 of each year, beginning in 1999, the Issuer shall deliver to the Trustee an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite company formalities and conducted its business and operations in such a manner as required for the Issuer to maintain its separate company existence from any other entity; and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel remain true and correct at all times.a
Appears in 2 contracts
Sources: Indenture and Servicing Agreement (MCM Capital Group Inc), Indenture and Servicing Agreement (MCM Capital Group Inc)
Separate Identity. The Issuer Servicer hereby covenants and agrees to take all actions required to maintain the Issuers Issuer's status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer shallnot satisfying any of the following:
(i) Issuer shall conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees)such;
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer;
(iii) Issuer shall (A) pay its own incidental administrative costs and expenses from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent extent; practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) Issuer shall at all times have at least two (2) independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becoming
(vii) not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Issuer's operating expenses;
(ix) not guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of directors in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation and Bylaws are duly and validly taken;
(xii) respond to any inquires with respect to ownership of a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable;
(xiii) on or before March 31 of each year, beginning in 1999, the Issuer shall deliver to the Trustee an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite company formalities and conducted its business and operations in such a manner as required for the Issuer to maintain its separate company existence from any other entity; and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel remain true and correct at all times.
Appears in 2 contracts
Sources: Indenture and Servicing Agreement (MCM Capital Group Inc), Indenture and Servicing Agreement (MCM Capital Group Inc)
Separate Identity. The Issuer hereby covenants and agrees to take all actions required to maintain the Issuers Issuer's status as a separate legal entity. Without limiting the foregoing, the Issuer shall:
(i) conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees);
(ii) compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer;
(iii) (A) pay its own incidental administrative costs and expenses from its own funds, and (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) at all times have at least two (2) one Independent Member, with at least one independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporationdirector, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directorsmanagers;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becomingbecoming available to its equity holders and therefore to any creditors, as the case may be;
(vii) not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit deposited into the Collection Account in accordance with this Agreement), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Issuer's operating expenses;
(ix) not guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of directors managers in accordance with the provisions of its Certificate of Incorporation LLC Agreement and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation LLC Agreement and Bylaws By-laws are duly and validly taken;
(xii) respond to any inquires inquiries made to it with respect to ownership of a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable;
(xiii) on or before March 31 of each year, beginning in 19992000, the Issuer shall deliver to the Trustee and each of the Noteholders an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite company formalities and conducted its business and operations in such a manner as required for the Issuer to maintain its separate company existence from any other entity; and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel remain true and correct at all times.
Appears in 1 contract
Sources: Indenture and Servicing Agreement (Creditrust Corp)
Separate Identity. The Issuer Servicer hereby covenants and agrees to take all actions required to maintain the Issuers Issuer's status as a separate legal entity. Without limiting the foregoing, the Issuer Servicer shall:
(i) cause Issuer to conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees)such;
(ii) cause Issuer to compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer;
(iii) cause Issuer to (A) pay its own incidental administrative costs and expenses from its own funds, and (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) cause Issuer to at all times have at least two (2) one Independent Member, with at least one independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporationdirector, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directorsmanagers;
(v) cause Issuer to maintain its books and records separate from those of any Affiliate;
(vi) cause Issuer to prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becomingbecoming available to its equity holders and therefore to any creditors, as the case may be;
(vii) cause Issuer to not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit deposited into the Collection Account in accordance with this Agreement), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Issuer's operating expenses;
(ix) not permit Issuer to guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) cause Issuer to maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
(xi) cause Issuer to hold regular meetings of its board of directors managers in accordance with the provisions of its Certificate of Incorporation LLC Agreement and otherwise take such actions as are necessary on its part to ensure that all corporate company procedures required by its Certificate of Incorporation LLC Agreement and Bylaws By-laws are duly and validly taken;
(xii) cause Issuer to respond to any inquires made directly to it with respect to ownership of a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable;; and
(xiii) on or before March 31 of each year, beginning in 1999, the Issuer shall deliver to the Trustee an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite company formalities and conducted its business and operations in such a manner as required for the cause Issuer to maintain its separate company existence from any other entity; and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel remain true and correct at all times.
Appears in 1 contract
Sources: Indenture and Servicing Agreement (Creditrust Corp)
Separate Identity. The Issuer Servicer hereby covenants and agrees to take all actions required to maintain the Issuers Issuer's status as a separate legal entity. Without limiting the foregoing, the Issuer Servicer shall:
(i) cause Issuer to conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees)such;
(ii) cause Issuer to compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer;
(iii) cause Issuer to (A) pay its own incidental administrative costs and expenses from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) cause Issuer to at all times have at least two (2) one independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporationmember, with at least one independent director, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directorsmanagers;
(v) cause Issuer to maintain its books and records separate from those of any Affiliate;
(vi) cause Issuer to prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becomingbecoming available to its equity holders and therefore to any creditors, as the case may be;
(vii) cause Issuer to not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Issuer's operating expenses;
(ix) not permit Issuer to guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) cause Issuer to maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of directors managers in accordance with the provisions of its Certificate of Incorporation LLC Agreement and otherwise take such actions as are necessary on its part to ensure that all corporate company procedures required by its Certificate of Incorporation LLC Agreement and Bylaws By-laws are duly and validly taken;
(xii) cause Issuer to respond to any inquires made directly to it with respect to ownership of a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable;; and
(xiii) on or before March 31 of each year, beginning in 1999, the Issuer shall deliver to the Trustee an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite company formalities and conducted its business and operations in such a manner as required for the cause Issuer to maintain its separate company existence from any other entity; and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel remain true and correct at all times.
Appears in 1 contract
Sources: Indenture and Servicing Agreement (Creditrust Corp)
Separate Identity. The Issuer hereby covenants and agrees to take Take all actions required to maintain the Issuers Seller's status as a separate legal entity. Without limiting the foregoing, the Issuer Seller shall:
(i) conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such and not as employees of any other Affiliate of the Seller (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the IssuerSeller's employees);
(ii) compensate all employees, consultants and agents directly or indirectly through reimbursement of the ServicerOriginator each calendar quarter, from the IssuerSeller's bank accounts, for services provided to the Issuer Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer Seller is also an employee, consultant or agent of any Affiliate of the ServicerSeller, allocate the compensation of such employee, consultant or agent between the Issuer Seller and the Servicer such Affiliate on a basis which reflects the respective services rendered to the Issuer Seller and the Servicersuch Affiliate;
(iii) (A) pay its own incidental administrative costs operating expenses and expenses liabilities from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other for items of cost and expense shared between the Issuer Seller and the Servicer, on the basis of actual use to the extent practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;any
(iv) at all times have at least two (2) independent directors who satisfy one "Independent Director", as defined in and as required under the definition of Independent Director provided in the Seller's Certificate of Incorporation, Incorporation and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its other Affiliates and ensure insure that any consolidated financial statement statements of the Originator have notes to the effect that the Issuer Seller is a separate corporate entity whose creditors have a claim on its assets prior to those assets becomingbecoming available to its equity holders and therefore to any creditors of the Originator;
(vii) use its best efforts not to commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement)Affiliate, and not to hold its assets in any manner that would create an appearance that such assets belong to any such other Affiliate, and not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates Affiliate to pay its operating expenses (except pursuant to allocation arrangements that comply with the Issuer's operating expensesrequirements of subsection (ii) or (iii) of this Section 5.01(l) or pursuant to the terms of the Originator Purchase Agreement);
(ix) not guarantee any obligation of any of its Affiliates Affiliate nor (to the extent that the Seller has the legal power to prevent such) have any of its obligations guaranteed by any such Affiliate Affiliate, (either directly or by seeking credit based on the assets of such Affiliate), ) or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery and a telephone number separate from that of any Affiliate and have all its officers and employees conduct all of its business solely which telephone number will be answered in its own name;, and have
(xi) hold regular meetings of its board of directors (not less frequently than quarterly) in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation and Bylaws by-laws are duly and validly taken;
(xii) respond to maintain a separate office from the offices of any inquires with respect to ownership of its Affiliates and identify such office by a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest sign in such Receivableits own name;
(xiii) on or before March 31 of each year, beginning in 1999, the Issuer shall deliver to the Trustee an Officer's Certificate stating that Issuer has, pay dividends only if (A) no other dividend has been paid during the preceding yearcalendar month in which such dividend is paid, observed all (B) such dividend has been duly authorized by its board of the requisite company formalities directors in accordance with applicable law and conducted (C) its business and operations in net worth, determined immediately after giving effect to such a manner as required for the Issuer to maintain its separate company existence from any other entitydividend is at least $2,000,000; and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel described in Section 3.01(a)(x) remain true and correct at all times.
Appears in 1 contract
Separate Identity. The Issuer Servicer hereby covenants and agrees to take all ----------------- actions required to maintain the Issuers Issuer's status as a separate legal entity. Without limiting the foregoing, the Issuer Servicer shall:
(i) cause Issuer to conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees)such;
(ii) cause Issuer to compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer;
(iii) cause Issuer to (A) pay its own incidental administrative costs and expenses from its own funds, and (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) cause Issuer to at all times have at least two (2) one Independent Member, with at least one independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporationdirector, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directorsmanagers;
(v) cause Issuer to maintain its books and records separate from those of any Affiliate;
(vi) cause Issuer to prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becomingbecoming available to its equity holders and therefore to any creditors, as the case may be;
(vii) cause Issuer to not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Issuer's operating expenses;
(ix) not permit Issuer to guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) cause Issuer to maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
(xi) cause Issuer to hold regular meetings of its board of directors managers in accordance with the provisions of its Certificate of Incorporation LLC Agreement and otherwise take such actions as are necessary on its part to ensure that all corporate company procedures required by its Certificate of Incorporation LLC Agreement and Bylaws By-laws are duly and validly taken;
(xii) cause Issuer to respond to any inquires made directly to it with respect to ownership of a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable;; and
(xiii) on or before March 31 of each year, beginning in 1999, the Issuer shall deliver to the Trustee an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite company formalities and conducted its business and operations in such a manner as required for the cause Issuer to maintain its separate company existence from any other entity; and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel remain true and correct at all times.
Appears in 1 contract
Sources: Indenture and Servicing Agreement (Creditrust Corp)
Separate Identity. The Issuer Servicer hereby covenants and agrees to take all actions required to maintain the Issuers Issuer's status as a separate legal entity. Without limiting the foregoing, the Servicer shall not take any action or fail to take any action that would result in the Issuer shallnot satisfying any of the following:
(i) Issuer shall conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees)such;
(ii) Issuer shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer;
(iii) Issuer shall (A) pay its own incidental administrative costs and expenses from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent extent; practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) Issuer shall at all times have at least two (2) independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;
(v) Issuer shall maintain its books and records separate from those of any Affiliate;
(vi) Issuer shall prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becomingbecoming available to its equity holders and therefore to any of their respective creditors, as the case may be;
(vii) Issuer shall not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) Issuer shall not permit any of its Affiliates to pay the Issuer's operating expenses;
(ix) Issuer shall not permit Issuer to guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) Issuer shall maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
(xi) Issuer shall hold regular meetings of its board of directors in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all corporate company procedures required by its Certificate of Incorporation and Bylaws are duly and validly taken;
(xii) Issuer shall respond to any inquires made directly to it with respect to ownership of a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable;; and
(xiii) on or before March 31 of each year, beginning in 1999, the Issuer shall deliver to the Trustee an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite company formalities and conducted its business and operations in such a manner as required for the Issuer to maintain its separate company existence from any other entity; and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's Issuers counsel remain true and correct at all times.
Appears in 1 contract
Sources: Indenture and Servicing Agreement (MCM Capital Group Inc)
Separate Identity. The Issuer hereby covenants and agrees to take all actions required to maintain the Issuers Issuer's status as a separate legal entity. Without limiting the foregoing, the Issuer shall:
(i) conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees);
(ii) compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer;
(iii) (A) pay its own incidental administrative costs and expenses from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) at all times have at least two (2) one independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporationmember, with at least one independent director, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directorsmanagers;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becomingbecoming available to its equity holders and therefore to any creditors, as the case may be;
(vii) not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Issuer's operating expenses;
(ix) not guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of directors managers in accordance with the provisions of its Certificate of Incorporation LLC Agreement and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation LLC Agreement and Bylaws By-laws are duly and validly taken;
(xii) respond to any inquires with respect to ownership of a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable;
(xiii) on or before March 31 of each year, beginning in 1999, the Issuer shall deliver to the Trustee an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite company formalities and conducted its business and operations in such a manner as required for the Issuer to maintain its separate company existence from any other entity; and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel remain true and correct at all times.
Appears in 1 contract
Sources: Indenture and Servicing Agreement (Creditrust Corp)
Separate Identity. The Issuer hereby covenants and agrees to will take all actions required to maintain the Issuers Issuer's status as a separate legal entity. Without limiting the foregoing, the Issuer shallwill:
(i) conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such and not as employees of any other Affiliate of the Issuer (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees);
(ii) compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, Originator from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents (except to the extent provided under the Administrative Services Agreement) and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of any Affiliate of the ServicerIssuer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer such Affiliate on a basis which reflects the respective services rendered to the Issuer and the Servicersuch Affiliate;
(iii) (A) pay its own incidental administrative costs and expenses not covered under the terms of the Administrative Services Agreement, from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and any Affiliate, pursuant to the Servicerterms of the Administrative Services Agreement, on the basis of actual use to the extent practicablepracticable and, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered, and (C) allocate taxes on the basis set forth in the Administrative Services Agreement;
(iv) at all times have at least two (2) independent directors who "Independent Directors", both of which satisfy the definition of Independent Director provided requirements set forth in Section 2.03(n)(ii) hereof and under the Issuer's Certificate of Incorporation, and have at least one officer responsible for managing its day-day- to-day business and manage such business by or under the direction of its board of directors;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its Affiliates and use its best efforts to ensure that any consolidated financial statement statements of the Originator have notes to the effect that the Issuer is a separate corporate entity whose creditors have a claim on its assets prior to those assets becomingbecoming available to its equity holders and therefore to any creditors of the Originator;
(vii) not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment which are not material in the aggregate and which have been mistakenly forwarded by an Obligor directly to the Originator or funds which may be commingled until deposit into the Collection Account in accordance with this Agreementany of its other Affiliates), and not to hold its assets in any manner that would create an appearance that such assets belong to the Originator or any such Affiliate, not maintain bank accounts or other depository accounts to which the Originator or any such Affiliate is an account party, into which the Originator or any such Affiliate makes deposits or from which the Originator or any such Affiliate has the power to make withdrawals, and not act as an agent or representative of the Originator or any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Issuer's operating expensesexpenses (except pursuant to allocation arrangements that comply with the requirements of subsection (ii) or (iii) of this Section 2.05(k) or pursuant to the terms of the Purchase and Contribution Agreement);
(ix) not guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate Affiliate, (either directly or by seeking credit based on the assets of such Affiliate), ) or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery and a telephone number separate from that of any Affiliate and which telephone number will be answered in its own name, and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of directors in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation and Bylaws by-laws are duly and validly taken;
(xii) maintain a separate office from the offices of any of its Affiliates and identify such office by a sign in its own name;
(xiii) not advance funds or other assets to, or commit to advance funds or other assets to (other than by way of payments in respect of a Purchase under the Purchase and Contribution Agreement), or accept funds from (other than by way of contributions to capital) the Originator or any of its other Affiliates for any purpose or transaction (other than in compliance with the provisions of Section 2.06(j) with respect to transactions with Affiliates), or permit the Originator or any of its other Affiliates to be involved in the management of the Issuer;
(xiv) respond to any inquires inquiries with respect to ownership of a Receivable an Advance by stating that it is the owner of such contributed ReceivableAdvance, and, if requested to do so, and that the Trustee an interest in such Advance has been granted a security interest in such Receivableto the Trustee for the benefit of the Secured Parties;
(xiiixv) on or before March May 31 of each year, beginning in 1999, the Issuer shall deliver to the Trustee Insurer an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite company corporate formalities and conducted its business and operations in such a manner as required for the Issuer to maintain its separate company corporate existence from any other entity; and
(xivxvi) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel described in the List of Closing Documents attached as Exhibit F remain true and correct at all times.
Appears in 1 contract
Sources: Master Trust Indenture and Security Agreement (Ag Services of America Inc)
Separate Identity. The Issuer hereby covenants and agrees to take Take all actions required to maintain the Issuers Seller’s status as a separate legal entity. Without limiting the foregoing, the Issuer Seller shall:
(i) conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such and not as employees of any other Affiliate of the Seller (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's Seller’s employees);
(ii) compensate all employees, consultants and agents directly or indirectly through reimbursement of the ServicerOriginator each calendar quarter, from the Issuer's Seller’s bank accounts, for services provided to the Issuer Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer Seller is also an employee, consultant or agent of any Affiliate of the ServicerSeller, allocate the compensation of such employee, consultant or agent between the Issuer Seller and the Servicer such Affiliate on a basis which reflects the respective services rendered to the Issuer Seller and the Servicersuch Affiliate;
(iii) (A) pay its own incidental administrative costs operating expenses and expenses liabilities from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants charges and agents, and reasonable legal and auditing expensesrent for office space) which are not reflected in the Servicing Fee, and other for items of cost and expense shared between the Issuer Seller and the Servicer, any Affiliate on the basis of actual use to the extent practicablepracticable and, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or and allocate taxes on the value basis of services renderedtheir respective incomes in accordance with applicable federal regulations;
(iv) at all times have at least two (2) independent directors who satisfy one “Independent Manager”, as defined in and as required under the definition of Independent Director provided in the Certificate of Incorporation, Seller’s limited liability company agreement and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directorsmanagers;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its other Affiliates and ensure insure that any consolidated financial statement statements of the Originator have notes to the effect that the Issuer Seller is a separate entity whose creditors have a claim on its assets prior to those assets becomingbecoming available to its equity holders and therefore to any creditors of the Originator;
(vii) use its best efforts not to commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement)Affiliate, and not to hold its assets in any manner that would create an appearance that such assets belong to any such other Affiliate, and not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates Affiliate to pay its operating expenses (except pursuant to allocation arrangements that comply with the Issuer's operating expensesrequirements of subsection (ii) or (iii) of this Section 5.01(l) or pursuant to the terms of the Sale Agreement);
(ix) not guarantee any obligation of any of its Affiliates Affiliate nor (to the extent that the Seller has the legal power to prevent such) have any of its obligations guaranteed by any such Affiliate Affiliate, (either directly or by seeking credit based on the assets of such Affiliate), ) or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery and a telephone number separate from that of any Affiliate and which telephone number will be answered in its own name, and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its members and/or board of directors managers in accordance with the provisions of its Certificate of Incorporation limited liability company agreement and otherwise take such actions as are necessary on its part to ensure that all corporate organizational procedures required by its Certificate certificate of Incorporation formation and Bylaws limited liability company agreement are duly and validly taken;
(xii) respond to maintain a separate office from the offices of any inquires with respect to ownership of its Affiliates and identify such office by a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest sign in such Receivableits own name;
(xiii) on pay dividends or before March 31 of each year, beginning in 1999, the Issuer shall deliver other distributions to the Trustee an Officer's Certificate stating that Issuer has, its members only if (A) no other dividend or distribution has been paid during the preceding yearcalendar month in which such amount is paid, observed all (B) such dividend or distribution has been duly authorized by its board of the requisite company formalities managers in accordance with applicable law and conducted (C) its business and operations in net worth, determined immediately after giving effect to such a manner as required for the Issuer to maintain its separate company existence from any other entitydividend or distribution is at least $2,000,000; and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion concerning certain bankruptcy matters to be delivered by Issuer's counsel for the Seller pursuant to Section 3.01(a)(ix) remain true and correct at all times.
Appears in 1 contract
Separate Identity. The Borrower acknowledges that the Agent, the LC Issuer hereby covenants and agrees to the Lender are entering into the transactions contemplated by this Agreement in reliance upon the Borrower’s identity as a legal entity that is separate from each Originator. Therefore, from and after the date of execution and delivery of this Agreement, the Borrower shall take all actions required reasonable steps, including, without limitation, all steps that the Agent or the Lender may from time to time reasonably request, to maintain the Issuers status Borrower’s identity as a separate legal entityentity and to make it manifest to third parties that the Borrower is an entity with assets and liabilities distinct from those of each Originator and any Affiliates thereof (other than the Borrower) and not just a division of any Originator or any such Affiliate. Without limiting the foregoinggenerality of the foregoing and in addition to the other covenants set forth herein, the Issuer shallBorrower will:
(i) hold itself out to the public and conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely own business in its own name (and not as a division of any other Person), and require that its employeesall full-time employees of the Borrower, if any, when conducting its business identify themselves as such and not as employees of any Originator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's Borrower’s employees);
(ii) compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicerdirectly, from the Issuer's bank accountsBorrower’s own funds, for services provided to the Issuer Borrower by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer Borrower is also an employee, consultant or agent of the Servicerany Originator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between the Issuer Borrower and the Servicer such Originator or such Affiliate, as applicable, on a basis which that reflects the respective services rendered to the Issuer Borrower and the Servicersuch Originator or such Affiliate, as applicable;
(iii) (A) pay maintain separate stationery, invoices, checks and other business forms in its own incidental administrative costs name;
(iv) conduct all transactions with the Originators and expenses from the Servicer (including, without limitation, any delegation of its own fundsobligations hereunder to the Servicer) strictly on an arm’s-length basis, (B) allocate fairly and reasonably all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other for items of cost and expense shared between the Issuer Borrower and the Servicer, Originators on the basis of actual use to the extent practicablepracticable and, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendereduse;
(ivv) at all times have at least two (2) independent directors who satisfy the definition of one Independent Director provided in the Certificate of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directorsManager;
(vvi) observe all organizational formalities as a distinct entity, and ensure that all entity actions relating to (A) the selection, maintenance or replacement of the Independent Manager, (B) the dissolution or liquidation of the Borrower or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving the Borrower, are duly authorized by all requisite entity action and, in the case of clauses (B) and (C), by all members of the Borrower and the Independent Manager;
(vii) maintain its the Borrower’s books and records separate and distinct from those of any AffiliateOriginator and any Affiliate thereof and otherwise in such a manner so that the assets of the Borrower are readily identifiable as its own assets rather than assets of any Originator or any Affiliate thereof;
(viviii) prepare its financial statements separately from those of its Affiliates each Originator and ensure insure that any consolidated financial statement statements of the Parent or any Affiliate thereof that include the Borrower and that are filed with the Securities and Exchange Commission or any other governmental agency have notes to the effect clearly stating that the Issuer Borrower is a separate legal entity whose creditors have a claim on and that its assets prior will be available only to those assets becomingsatisfy the claims of the creditors of the Borrower;
(viiix) not commingle its except as herein specifically otherwise provided, maintain the funds or and other assets with of the Borrower separate from, and not commingled with, those of any of its Affiliates (other than in respect of items of payment Originator or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement), any Affiliate thereof and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not only maintain bank accounts or other depository accounts to which any such Affiliate the Borrower alone is an the account party, into which any such Affiliate the Borrower alone makes deposits or and from which any such Affiliate the Borrower alone (or the Agent hereunder) has the power to make withdrawals;
(x) pay all of the Borrower’s operating expenses from the Borrower’s own assets (except for certain payments by any Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 7.1(i)) and pay its own liabilities out of its own funds;
(xi) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (A) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (B) the incurrence of obligations under this Agreement, (C) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originators thereunder for the purchase of Receivables from the Originators under the Receivables Sale Agreement, and (D) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(xii) maintain its organizational documents in conformity with this Agreement, such that it does not act as an agent amend, restate, supplement or representative otherwise modify its Certificate of Formation or Limited Liability Company Agreement in any respect that would impair its ability to comply with the terms or provisions of any of its Affiliates in any capacitythe Transaction Documents, including, without limitation, Section 7.1(i) of this Agreement;
(viiixiii) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not permit amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of its Affiliates to pay the Issuer's operating expensesAgent;
(ixxiv) maintain its entity separateness such that it does not guarantee merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any obligation Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary other than with respect to the merger effected February 1, 2015, of ABF Freight Funding LLC and ArcBest Funding LLC, to which the Lender, LC Issuer and the Agent hereby consent;
(xv) refrain from making any dividend, distribution, redemption of capital stock or payment of any of subordinated indebtedness that would cause the Required Capital Amount (as defined in the Receivables Sale Agreement) to cease to be maintained;
(xvi) operate its Affiliates nor have any of its obligations guaranteed by any business and activities such Affiliate that it (either directly or by seeking credit based on the assets of such Affiliate), or otherwise A) does not hold itself out as responsible having agreed to guarantee or be obligated for the debts of any Affiliate;
Originator or any Affiliate thereof, (xB) maintain at all times stationery separate from that does not hold out its credit as being available to satisfy the obligations of any Originator or any Affiliate thereof and have all its officers and employees conduct all of its business solely in its own name;
(xiC) hold regular meetings of its board of directors in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation and Bylaws are duly and validly taken;
(xii) respond to any inquires with respect to ownership of a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable;
(xiii) on or before March 31 of each year, beginning in 1999, the Issuer shall deliver to the Trustee an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite company formalities and conducted its business and operations in such a manner as required not pledged assets for the Issuer to maintain its separate company existence from benefit of any other entityOriginator or any Affiliate thereof, except as otherwise permitted under the Transaction Documents; and
(xivxvii) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-opinion issued by ▇▇▇▇▇▇ and Bird LLP as counsel for the Borrower, in connection with this Amended and Restated Receivables Loan Agreement and relating to substantive consolidation opinion delivered by Issuer's counsel issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times; and
(xviii) maintain its organizational documents in conformity with this Agreement, such that its organizational documents, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to the Agent of the replacement or appointment of any director that is to serve as an Independent Manager for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that the Borrower certify that the designated Person satisfied the criteria set forth in the definition herein of Independent Manager and the Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of Independent Manager.
Appears in 1 contract
Separate Identity. The Issuer hereby covenants and agrees to take Take all actions required to maintain the Issuers Seller's status as a separate legal entity. Without limiting the foregoing, the Issuer Seller shall:
(i) conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such and not as employees of any other Affiliate of the Seller (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the IssuerSeller's employees);
(ii) compensate all employees, consultants and agents directly or indirectly through reimbursement of the ServicerOriginator each calendar quarter, from the IssuerSeller's bank accounts, for services provided to the Issuer Seller by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer Seller is also an employee, consultant or agent of any Affiliate of the ServicerSeller, allocate the compensation of such employee, consultant or agent between the Issuer Seller and the Servicer such Affiliate on a basis which reflects the respective services rendered to the Issuer Seller and the Servicersuch Affiliate;
(iii) (A) pay its own incidental administrative costs operating expenses and expenses liabilities from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other for items of cost and expense shared between the Issuer Seller and the Servicer, any Affiliate on the basis of actual use to the extent practicablepracticable and, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or and allocate taxes on the value basis of services renderedtheir respective incomes in accordance with applicable federal regulations;
(iv) at all times have at least two (2) independent directors who satisfy one "Independent Director", as defined in and as required under the definition of Independent Director provided in the Seller's Certificate of Incorporation, Incorporation and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its other Affiliates and ensure insure that any consolidated financial statement statements of the Originator have notes to the effect that the Issuer Seller is a separate corporate entity whose creditors have a claim on its assets prior to those assets becomingbecoming available to its equity holders and therefore to any creditors of the Originator;
(vii) use its best efforts not to commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement)Affiliate, and not to hold its assets in any manner that would create an appearance that such assets belong to any such other Affiliate, and not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates Affiliate to pay its operating expenses (except pursuant to allocation arrangements that comply with the Issuer's operating expensesrequirements of subsection (ii) or (iii) of this Section 5.01(l) or pursuant to the terms of the Purchase Agreement);
(ix) not guarantee any obligation of any of its Affiliates Affiliate nor (to the extent that the Seller has the legal power to prevent such) have any of its obligations guaranteed by any such Affiliate Affiliate, (either directly or by seeking credit based on the assets of such Affiliate), ) or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery and a telephone number separate from that of any Affiliate and which telephone number will be answered in its own name, and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of directors in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation and Bylaws by-laws are duly and validly taken;
(xii) respond to maintain a separate office from the offices of any inquires with respect to ownership of its Affiliates and identify such office by a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest sign in such Receivableits own name;
(xiii) on or before March 31 of each year, beginning in 1999, the Issuer shall deliver to the Trustee an Officer's Certificate stating that Issuer has, pay dividends only if (A) no other dividend has been paid during the preceding yearcalendar month in which such dividend is paid, observed all (B) such dividend has been duly authorized by its board of the requisite company formalities directors in accordance with applicable law and conducted (C) its business and operations in net worth, determined immediately after giving effect to such a manner as required for the Issuer to maintain its separate company existence from any other entitydividend is at least $2,000,000; and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel described in Section 3.01(x) remain true and correct at all times.
Appears in 1 contract
Separate Identity. The Issuer hereby covenants and agrees to take all ----------------- actions required to maintain the Issuers Issuer's status as a separate legal entity. Without limiting the foregoing, the Issuer shall:
(i) conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees);
(ii) compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer;
(iii) (A) pay its own incidental administrative costs and expenses from its own funds, and (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) at all times have at least two (2) one Independent Member, with at least one independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporationdirector, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directorsmanagers;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becomingbecoming available to its equity holders and therefore to any creditors, as the case may be;
(vii) not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Issuer's operating expenses;
(ix) not guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of directors managers in accordance with the provisions of its Certificate of Incorporation LLC Agreement and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation LLC Agreement and Bylaws By-laws are duly and validly taken;
(xii) respond to any inquires inquiries made to it with respect to ownership of a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable;
(xiii) on or before March 31 of each year, beginning in 19992000, the Issuer shall deliver to the Trustee an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite company formalities and conducted its business and operations in such a manner as required for the Issuer to maintain its separate company existence from any other entity; and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel remain true and correct at all times.
Appears in 1 contract
Sources: Indenture and Servicing Agreement (Creditrust Corp)
Separate Identity. The Borrower acknowledges that the Agent, the LC Issuer hereby covenants and agrees to the Lenders are entering into the transactions contemplated by this Agreement in reliance upon the Borrower’s identity as a legal entity that is separate from each Originator. Therefore, from and after the date of execution and delivery of this Agreement, the Borrower shall take all actions required reasonable steps, including, without limitation, all steps that the Agent or any Lender may from time to time reasonably request, to maintain the Issuers status Borrower’s identity as a separate legal entityentity and to make it manifest to third parties that the Borrower is an entity with assets and liabilities distinct from those of each Originator and any Affiliates thereof (other than the Borrower) and not just a division of any Originator or any such Affiliate. Without limiting the foregoinggenerality of the foregoing and in addition to the other covenants set forth herein, the Issuer shallBorrower will:
(i) hold itself out to the public and conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely own business in its own name (and not as a division of any other Person), and require that its employeesall full-time employees of the Borrower, if any, when conducting its business identify themselves as such and not as employees of any Originator (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's Borrower’s employees);
(ii) compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicerdirectly, from the Issuer's bank accountsBorrower’s own funds, for services provided to the Issuer Borrower by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer Borrower is also an employee, consultant or agent of the Servicerany Originator or any Affiliate thereof, allocate the compensation of such employee, consultant or agent between the Issuer Borrower and the Servicer such Originator or such Affiliate, as applicable, on a basis which that reflects the respective services rendered to the Issuer Borrower and the Servicersuch Originator or such Affiliate, as applicable;
(iii) (A) pay maintain separate stationery, invoices, checks and other business forms in its own incidental administrative costs name;
(iv) conduct all transactions with the Originators and expenses from the Servicer (including, without limitation, any delegation of its own fundsobligations hereunder to the Servicer) strictly on an arm’s-length basis, (B) allocate fairly and reasonably all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other for items of cost and expense shared between the Issuer Borrower and the Servicer, Originators on the basis of actual use to the extent practicablepracticable and, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendereduse;
(ivv) at all times have at least two (2) independent directors who satisfy the definition of one Independent Director provided in the Certificate of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directorsManager;
(vvi) observe all organizational formalities as a distinct entity, and ensure that all entity actions relating to (A) the selection, maintenance or replacement of the Independent Manager, (B) the dissolution or liquidation of the Borrower or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving the Borrower, are duly authorized by all requisite entity action and, in the case of clauses (B) and (C), by all members of the Borrower and the Independent Manager;
(vii) maintain its the Borrower’s books and records separate and distinct from those of any AffiliateOriginator and any Affiliate thereof and otherwise in such a manner so that the assets of the Borrower are readily identifiable as its own assets rather than assets of any Originator or any Affiliate thereof;
(viviii) prepare its financial statements separately from those of its Affiliates each Originator and ensure insure that any consolidated financial statement statements of the Parent or any Affiliate thereof that include the Borrower and that are filed with the Securities and Exchange Commission or any other governmental agency have notes to the effect clearly stating that the Issuer Borrower is a separate legal entity whose creditors have a claim on and that its assets prior will be available only to those assets becomingsatisfy the claims of the creditors of the Borrower;
(viiix) not commingle its except as herein specifically otherwise provided, maintain the funds or and other assets with of the Borrower separate from, and not commingled with, those of any of its Affiliates (other than in respect of items of payment Originator or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement), any Affiliate thereof and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not only maintain bank accounts or other depository accounts to which any such Affiliate the Borrower alone is an the account party, into which any such Affiliate the Borrower alone makes deposits or and from which any such Affiliate the Borrower alone (or the Agent hereunder) has the power to make withdrawals;
(x) pay all of the Borrower’s operating expenses from the Borrower’s own assets (except for certain payments by any Originator or other Persons pursuant to allocation arrangements that comply with the requirements of this Section 7.1(i)) and pay its own liabilities out of its own funds;
(xi) operate its business and activities such that: it does not engage in any business or activity of any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking, other than the transactions contemplated and authorized by this Agreement and the Receivables Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (A) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (B) the incurrence of obligations under this Agreement, (C) the incurrence of obligations, as expressly contemplated in the Receivables Sale Agreement, to make payment to the Originators thereunder for the purchase of Receivables from the Originators under the Receivables Sale Agreement, and (D) the incurrence of operating expenses in the ordinary course of business of the type otherwise contemplated by this Agreement;
(xii) maintain its organizational documents in conformity with this Agreement, such that it does not act as an agent amend, restate, supplement or representative otherwise modify its Certificate of Formation or Limited Liability Company Agreement in any respect that would impair its ability to comply with the terms or provisions of any of its Affiliates in any capacitythe Transaction Documents, including, without limitation, Section 7.1(i) of this Agreement;
(viiixiii) maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement, such that it does not permit amend, restate, supplement, cancel, terminate or otherwise modify the Receivables Sale Agreement, or give any consent, waiver, directive or approval thereunder or waive any default, action, omission or breach under the Receivables Sale Agreement or otherwise grant any indulgence thereunder, without (in each case) the prior written consent of its Affiliates to pay the Issuer's operating expensesAgent;
(ixxiv) maintain its entity separateness such that it does not guarantee merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any obligation Person, nor at any time create, have, acquire, maintain or hold any interest in any Subsidiary other than with respect to the merger effected February 1, 2015, of ABF Freight Funding LLC and ArcBest Funding LLC;
(xv) refrain from making any dividend, distribution, redemption of capital stock or payment of any of subordinated indebtedness that would cause the Required Capital Amount (as defined in the Receivables Sale Agreement) to cease to be maintained;
(xvi) operate its Affiliates nor have any of its obligations guaranteed by any business and activities such Affiliate that it (either directly or by seeking credit based on the assets of such Affiliate), or otherwise A) does not hold itself out as responsible having agreed to guarantee or be obligated for the debts of any AffiliateOriginator or any Affiliate thereof, (B) does not hold out its credit as being available to satisfy the obligations of any Originator or any Affiliate thereof and (C) has not pledged assets for the benefit of any Originator or any Affiliate thereof, except as otherwise permitted under the Transaction Documents;
(x) maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of directors in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation and Bylaws are duly and validly taken;
(xii) respond to any inquires with respect to ownership of a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable;
(xiii) on or before March 31 of each year, beginning in 1999, the Issuer shall deliver to the Trustee an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite company formalities and conducted its business and operations in such a manner as required for the Issuer to maintain its separate company existence from any other entity; and
(xivxvii) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-opinion issued by ▇▇▇▇▇▇ and Bird LLP as counsel for the Borrower, in connection with the Existing Loan Agreement and relating to substantive consolidation opinion delivered by Issuer's counsel issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times; and
(xviii) maintain its organizational documents in conformity with this Agreement, such that its organizational documents, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to the Agent of the replacement or appointment of any director that is to serve as an Independent Manager for purposes of this Agreement and the condition precedent to giving effect to such replacement or appointment that the Borrower certify that the designated Person satisfied the criteria set forth in the definition herein of Independent Manager and the Agent’s written acknowledgement that in its reasonable judgment the designated Person satisfies the criteria set forth in the definition herein of Independent Manager.
Appears in 1 contract
Separate Identity. The Issuer hereby covenants and agrees to take all actions required to maintain the Issuers status as a separate legal entity. Without limiting the foregoing, the Issuer shall:
(i) conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that its employees, if any, when conducting its business identify themselves as such (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Issuer's employees);
(ii) compensate all employees, consultants and agents directly or indirectly through reimbursement of the Servicer, from the Issuer's bank accounts, for services provided to the Issuer by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Issuer is also an employee, consultant or agent of the Servicer, allocate the compensation of such employee, consultant or agent between the Issuer and the Servicer on a basis which reflects the respective services rendered to the Issuer and the Servicer;
(iii) (A) pay its own incidental administrative costs and expenses from its own funds, (B) allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Issuer and the Servicer, on the basis of actual use to the extent practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;extent
(iv) at all times have at least two (2) independent directors who satisfy the definition of Independent Director provided in the Certificate of Incorporation, and have at least one officer responsible for managing its day-to-day business and manage such business by or under the direction of its board of directors;
(v) maintain its books and records separate from those of any Affiliate;
(vi) prepare its financial statements separately from those of its Affiliates and ensure that any consolidated financial statement have notes to the effect that the Issuer is a separate entity whose creditors have a claim on its assets prior to those assets becomingbecoming available to its equity holders and therefore to any of their respective creditors, as the case may be;
(vii) not commingle its funds or other assets with those of any of its Affiliates (other than in respect of items of payment or funds which may be commingled until deposit into the Collection Account in accordance with this Agreement), and not to hold its assets in any manner that would create an appearance that such assets belong to any such Affiliate, not maintain bank accounts or other depository accounts to which any such Affiliate is an account party, into which any such Affiliate makes deposits or from which any such Affiliate has the power to make withdrawals, and not act as an agent or representative of any of its Affiliates in any capacity;
(viii) not permit any of its Affiliates to pay the Issuer's operating expenses;
(ix) not guarantee any obligation of any of its Affiliates nor have any of its obligations guaranteed by any such Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold itself out as responsible for the debts of any Affiliate;
(x) maintain at all times stationery separate from that of any Affiliate and have all its officers and employees conduct all of its business solely in its own name;
(xi) hold regular meetings of its board of directors in accordance with the provisions of its Certificate of Incorporation and otherwise take such actions as are necessary on its part to ensure that all corporate procedures required by its Certificate of Incorporation and Bylaws are duly and validly taken;
(xii) respond to any inquires with respect to ownership of a Receivable by stating that it is the owner of such contributed Receivable, and, if requested to do so, that the Trustee has been granted a security interest in such Receivable;
(xiii) on or before March 31 of each year, beginning in 19992000, the Issuer shall deliver to the Trustee an Officer's Certificate stating that Issuer has, during the preceding year, observed all of the requisite company formalities and conducted its business and operations in such a manner as required for the Issuer to maintain its separate company existence from any other entity; and
(xiv) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the non-consolidation opinion delivered by Issuer's counsel remain true and correct at all times.
Appears in 1 contract
Sources: Indenture and Servicing Agreement (MCM Capital Group Inc)