Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that: (a) such Originator shall not be involved in the day to day management of the Buyer; (b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses); (c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate; (d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer; (e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer); (f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer); (g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets; (h) such Originator shall maintain an arm’s-length relationship with the Buyer; (i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer; (j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans); (k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space; (l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer; (m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer; (n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party; (o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and (p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement.
Appears in 4 contracts
Sources: Purchase and Sale Agreement (Lamar Media Corp/De), Purchase and Sale Agreement (Lamar Media Corp/De), Purchase and Sale Agreement (Lamar Media Corp/De)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement (a) The Company shall:
(i) Preserve its existence as an entity duly organized, validly existing and in good standing under the other Transaction Documents are being entered into in reliance upon laws of the Buyer’s identity as a legal entity State of Delaware;
(ii) Not commingle Company Property with those of any Member;
(iii) Maintain books and records for the Company separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(biv) such Originator shall maintain separate records and books of account from Conduct the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for Company’s own business in its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses)own name;
(cv) the Prepare its own financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliatestatements;
(dvi) except as permitted by Pay the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such OriginatorCompany’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assetsfunds;
(hvii) such Originator shall maintain Observe all Company formalities expressly required by this Agreement or the Act;
(viii) Maintain an arm’s-length relationship between the Company, on the one hand, and each Member and any Person affiliated with any Member, on the Buyerother hand;
(iix) such Originator shall not assume or Not guarantee or become obligated for the debts of the Buyer any other Person or hold out its the Company’s credit as being available to satisfy the obligations of the Buyerother Persons;
(jx) such Originator shall not Not acquire obligations or securities of any Member;
(xi) Use stationery, invoices, and checks for all material Company business that separately identifies the Buyer Company;
(xii) Not pledge Company Property for the benefit of any other than Person or make any loans or advances to any other Person, except in accordance with the Intercompany Loan terms of this Agreement and and/or the Intercompany LoansProject Documents;
(xiii) Identify the Company as a separate entity in all material written undertakings with third parties;
(xiv) Correct any known misunderstanding as to its status as a separate entity;
(xv) Not enter into or participate in any manner in any “reportable transaction” as defined in Treasury Regulation Section 1.6011 -4(b);
(kxvi) such Originator shall allocate fairly and reasonably overhead Notwithstanding anything to the contrary in the Agreement, not, directly or indirectly, repurchase, redeem, retire or otherwise acquire any of the Company’s capital stock, or take any other expenses that are properly shared with the Buyeraction, includingif, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from result, Member A would (a) be deemed to “control” the Buyer;
Company (mas “control” is used for purposes of The Bank Holding Company Act of 1956, as amended), or (b) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter intoown or control, or be a party todeemed to own or control, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it greater than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries 24.99% of the Buyer’s employees, if anytotal equity of the Company; and
(pxvii) Not enter into any new line of business that is inconsistent with the current business model and that significantly and adversely affects Member A or creates significant and adverse legal, regulatory or reputational consequences to the extent not already covered in paragraphs Member A.
(ab) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth Nothing in Section 8.03 of the Receivables Financing Agreement1.10(a) shall be construed as limiting, restricting or being breached by anything contemplated by Section 6.7 hereof.
Appears in 3 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Us Geothermal Inc), Operating Agreement (Us Geothermal Inc)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement Until such time as the Debt is paid in full, the Company will:
(i) Maintain books and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity records separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, ;
(ii) Maintain its Affiliates or bank accounts separate from any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(biii) such Originator shall maintain separate records Not commingle assets with those of any other Person and books hold all of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices assets in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses)own name;
(civ) the Conduct its own business in its own name;
(v) Maintain separate financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, (except that the Buyer’s assets and liabilities Company may be included in a consolidated financial statements of another Person where required by GAAP but (A) its separate assets shall be clearly indicated as such on such statement issued by an Affiliate of the Buyer; provided, however, that any and such consolidated financial statement or the notes thereto shall make clear statements will indicate that the BuyerCompany’s assets and credit are not available to satisfy the debts and other obligations of such AffiliateAffiliate or any other Person, and (B) such assets shall also be listed on the Company’s own separate balance sheet;
(dvi) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in Pay its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assetsfunds, provided, however, the foregoing shall not require the Member to make any additional capital contributions to the Company;
(hvii) such Originator shall maintain an arm’s-length relationship with the BuyerObserve all limited liability company formalities;
(iviii) such Originator Pay the salaries of its own employees and maintain a sufficient number of employees in light of its contemplated business operations, provided, however, the foregoing shall not assume or require the Member to make any additional capital contributions to the Company;
(ix) Not guarantee or become obligated for the debts of the Buyer any other Person or hold out its credit as being available to satisfy the obligations of the Buyerothers;
(jx) such Originator shall not Not acquire obligations or securities of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans)its partners, members or shareholders or any Affiliate, as applicable;
(kxi) such Originator shall allocate Allocate fairly and reasonably any overhead for shared office space or other expenses that are properly shared with the Buyer, including, without limitation, shared office spaceAffiliates;
(lxii) such Originator shall identify Use separate stationery, invoices and hold checks;
(xiii) Not pledge its assets to secure the obligations of any other Person or make any loans or advances to any Person;
(xiv) Hold itself out as a separate and distinct entity from the Buyerentity;
(mxv) such Originator shall correct Correct any known misunderstanding respecting regarding its separate identity from the Buyeridentity;
(nxvi) such Originator Maintain adequate capital in light of its contemplated business operations, provided, however, the foregoing shall not enter intorequire the Member to make any additional capital contributions to the Company;
(xvii) To the fullest extent permitted by law, not dissolve, wind up or liquidate, in whole or in part, consolidate or merge with or into any other Person, or be a party to, convey or sell its properties and assets substantially as an entirety to any transaction with the BuyerPerson, except in for sales expressly permitted by the ordinary course Loan Documents;
(xviii) Not incur, assume or guarantee any indebtedness other than the Debt evidenced and secured by the Loan Documents and the Debt permitted by the Loan Documents;
(xix) Not identify itself as a division of its business any other Person;
(xx) Not form, hold or acquire any subsidiaries;
(xxi) Not make any loans to any other Person or buy or hold evidence of indebtedness issued by others (other than investment grade securities);
(xxii) Enter into transactions with Affiliates only on a commercially reasonable basis and on terms which are intrinsically fair and not less favorable similar to it than would be obtained those available in a comparable arm’san arms-length transaction with an unrelated a third party;
(oxxiii) such Originator shall Pay any taxes required to be paid under applicable law, and file its own tax returns separate from those of any other Person, except to the extent that the Company is treated as a “disregarded entity” for tax purposes and is not pay the salaries required to file tax returns under applicable law;
(xxiv) Not engage, directly or indirectly, in any business other than ownership, maintenance and operation of the Buyer’s employees, if anyVNPP; and
(pxxv) to Not own any asset or property other than the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all Property and incidental personal property necessary for the ownership or operation of the other separateness covenants set forth in Section 8.03 Property. Failure of the Receivables Financing AgreementCompany, or the Member on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Electric City Corp), Limited Liability Company Agreement (Electric City Corp)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other The LLC covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
It shall: (bi) such Originator shall maintain and prepare separate records financial reports and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for financial statements, showing its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated separate and apart from those of any other Person, and will not have its assets listed on the financial statement issued by an Affiliate of the Buyerany other Person; provided, however, that any its assets may be included on a consolidated financial statement of its parent if: (A) such consolidated financial statement or shall contain a footnote to the notes thereto shall make clear effect that the BuyerLLC’s assets are owned by the LLC, and (B) such assets shall be listed on the LLC’s own balance sheet; (ii) maintain its own books and records and bank accounts separate from those of any other Person; (iii) not commingle or pool any of its funds and other assets with those of any Affiliate, any member or any Affiliate of any member or any other Person, and it shall hold all of its assets in its own name; (iv) not guarantee, become obligated for, or hold itself or its credit out to be responsible for, or available to satisfy satisfy, the debts or obligations of any other Person or control the decisions or actions respecting the daily business or affairs of any other Person (except as provided for in or permitted under the Transaction Documents); (v) not acquire equity interests of any Affiliate or of any Member or any of its Affiliates (other membership interests in entities that hold Permitted Assets and except as otherwise provided for in or permitted under this LLC Agreement or the Transaction Documents); (vi) maintain its assets in such Affiliate;a manner that it is not difficult to segregate, identify or ascertain such assets; (vii) not issue any minority equity interests; (viii) not assume, guarantee or pay the debts or obligations of any other Person or otherwise pledge its assets for the benefit of any other Person except as otherwise contemplated by the Transaction Documents; and (ix) maintain arm’s-length relationships with each of its Affiliates and not enter into business transactions with any of them unless such transactions are on terms and conditions that are not materially more or less favorable to such Affiliate than the terms and conditions that would be expected to have been obtained, under similar circumstances, from Persons who are not Affiliates; it being understood that the entering into of any Transaction Documents and the performance thereof in accordance with its terms satisfies such standard.
(b) It has done, or caused to be done, and shall do, all things necessary to observe all Delaware limited liability company formalities and other organizational formalities, and preserve its existence.
(c) The LLC shall not be consensually merged or legally consolidated with any other Person (other than certain Affiliates for financial reporting and federal tax purposes).
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator The LLC shall maintain not permit or suffer to exist any Liens on its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing AgreementPermitted Encumbrances.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (APT Sunshine State LLC), Limited Liability Company Agreement (APT Sunshine State LLC)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person; provided that the Borrower may be treated as a “disregarded entity” for U.S. federal income and other applicable Tax purposes. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:that (except as otherwise required for applicable Tax purposes based on the tax classification of the Borrower or any Originator or membership of the Borrower or any Originator in a consolidated combined, or similar tax group):
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) except for any Restricted Payments permitted by Section 8.01(r) of the Receivables Financing Agreement, such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement Agreements and the Intercompany Loans);
(k) such Originator shall allocate fairly and reasonably reasonably, to the extent practical on the basis of actual use or the value of services rendered, overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(po) to the extent not already covered in paragraphs (a) through (on) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement.
Appears in 2 contracts
Sources: Sale and Contribution Agreement (EnLink Midstream Partners, LP), Sale and Contribution Agreement (EnLink Midstream, LLC)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Purchase Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originatorthe Buyer’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement Agreements and the Intercompany Loans);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 7.03 of the Receivables Financing Purchase Agreement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Centric Brands Inc.), Purchase and Sale Agreement (Centric Brands Inc.)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement Agreements and the Intercompany Loans);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Compass Minerals International Inc), Purchase and Sale Agreement (Owens & Minor Inc/Va/)
Separateness Covenants. Each The Sub-Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the BuyerSPV’s identity as a legal entity separate from such the Sub-Originator and its Affiliates. Therefore, from and after the date hereof, each the Sub-Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer SPV is an entity with assets and liabilities distinct from those of such the Sub-Originator and any other Person, and is not a division of such the Sub-Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, the Sub-Originator shall take such actions as shall be required in order that:
(a) such the Sub-Originator shall not be involved in the day to day management of the BuyerSPV;
(b) such the Sub-Originator shall maintain separate records and books of account from the Buyer SPV and otherwise will observe corporate formalities and have a separate area from the Buyer SPV for its business (which may be located at the same address as the BuyerSPV, and, to the extent that it and the Buyer SPV have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such the Sub-Originator shall be prepared after the date of creation of the Buyer SPV to reflect and shall reflect the separate existence of the BuyerSPV; provided, that the BuyerSPV’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the BuyerSPV; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the BuyerSPV’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such the Sub-Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer SPV and (ii) such the Sub-Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the BuyerSPV;
(e) such the Sub-Originator shall not act as an agent for the Buyer SPV (except in the capacity of Servicer or a Sub-Servicer);
(f) such the Sub-Originator shall not conduct any of the business of the Buyer SPV in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such the Sub-Originator shall not pay any liabilities of the Buyer SPV out of its own funds or assets;
(h) such the Sub-Originator shall maintain an arm’s-length relationship with the BuyerSPV;
(i) such the Sub-Originator shall not assume or guarantee or become obligated for the debts of the Buyer SPV or hold out its credit as being available to satisfy the obligations of the BuyerSPV;
(j) such the Sub-Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans)SPV;
(k) such the Sub-Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the BuyerSPV, including, without limitation, shared office space;
(l) such the Sub-Originator shall identify and hold itself out as a separate and distinct entity from the BuyerSPV;
(m) such the Sub-Originator shall correct any known misunderstanding respecting its separate identity from the BuyerSPV;
(n) such the Sub-Originator shall not enter into, or be a party to, any transaction with the BuyerSPV, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such the Sub-Originator shall not pay the salaries of the BuyerSPV’s employees, if any; and
(p) the Sub-Originator will not account for or treat (whether in financial statements or otherwise) the transactions contemplated hereby in any manner other than the sale and absolute assignment of the Receivables and the Related Security by it to the Buyer or in any other respect account for or treat the transactions contemplated hereby in any manner other than as a sale and absolute assignment of the Receivables and the Related Security by it to the Buyer (except to the extent that such transactions are not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act recognized on account of consolidated financial reporting in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing AgreementGAAP).
Appears in 2 contracts
Sources: Sub Originator Sale Agreement (CONSOL Energy Inc.), Sub Originator Sale Agreement (CONSOL Coal Resources LP)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement (i) maintain an arm's length relationship with its Affiliates and its shareholders or other equity holders and any other parties furnishing services to it, including, but not limited to, the other Transaction Documents are being entered into in reliance upon Permitted Subsidiaries;
(ii) be solvent and pay its own liabilities, indebtedness and obligations of any kind, including administrative expenses, from its own assets as the Buyer’s same shall become due;
(iii) do all things necessary to preserve its existence, and observe all formalities applicable to it, and do all things necessary to maintain its identity as a legal an entity separate and distinct from such Originator the Permitted Subsidiaries and all of its other Affiliates. Therefore;
(iv) conduct and operate its business in its own name and as presently conducted and operated;
(v) maintain financial statements, from books and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets records and liabilities distinct bank accounts separate from those of such Originator and any other Personits Affiliates, and is not a division of such Originatorincluding, without limitation, its Affiliates shareholders or other equity holders or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that Borrower or any Subsidiary may be included in consolidated financial statements of another Person, provided that such consolidated financial statement statements contain a note indicating that Borrower or such Subsidiary, as the notes thereto shall make clear case may be, is a separate legal entity and the assets and liabilities of Borrower or such Subsidiary, as the case may be, neither are available to pay the debts of the consolidated Person nor constitute obligations of the consolidated Person and that the Buyer’s assets are consolidated Person is not available to satisfy liable for any of the obligations liabilities of Borrower or such AffiliateSubsidiary, as the case may be;
(dvi) except as permitted by be, and at all times hold itself out to the Receivables Financing Agreementpublic as, (i) such Originator shall maintain its assets a legal entity separate and distinct from any other Person (including, without limitation, deposit accounts) separately from the assets (includingany Affiliate, without limitationshareholder or other equity holder of Borrower or such Subsidiary, deposit accounts) or any Affiliate of the Buyer and (ii) any shareholder or other equity holder of Borrower or such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-ServicerSubsidiary);
(fvii) such Originator shall not conduct file its own tax returns (except to the extent it is treated as a division of another taxpayer for tax purposes) and pay any taxes so required to be paid under applicable law; provided, however, that so long as (x) the tax liability of Borrower or any Subsidiary and its respective income and expenses are readily determinable based on a review of the books and records of Borrower or such Subsidiary, as the case may be, and (y) Borrower or such Subsidiary, as the case may be, maintains sufficient books and records to determine its separate tax obligations for any particular reporting periods, Borrower or any Subsidiary, as the case may be, may file consolidated tax returns;
(viii) maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(ix) maintain its assets in such a manner that it is not costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person;
(x) pay any liabilities out of its own funds, including salaries of its employees, not out of the Buyer funds of any Affiliate;
(xi) use stationery, invoices, and checks separate from its Affiliates, including the Permitted Subsidiaries;
(xii) deposit all of its funds in checking accounts, savings accounts, time deposits or certificates of deposit of Borrower or any Subsidiary in its own name (except or invest such funds in the capacity of Servicer or a Sub-Servicer)its own name;
(gxiii) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its regarding the separate identity from the Buyerof Borrower or any Subsidiary;
(nxiv) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except participate in the ordinary course of its business and on terms which are intrinsically fair and not less favorable reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods or services provided to it than would be obtained in a comparable arm’s-length transaction with an unrelated third partymultiple entities;
(oxv) such Originator shall not pay the salaries establish and maintain an office through which its business is conducted separate and apart from that of the Buyer’s employeesPermitted Subsidiaries or any other Affiliate; provided, if anyhowever, that nothing herein shall be construed so as to prevent Borrower or any Subsidiary from having office space at the same address as any of the Permitted Subsidiaries or any other Affiliate, so long as the costs and expenses associated with such office space are allocated as set forth in paragraph (xiv) above; and
(pxvi) maintain a separate telephone number from that of the Permitted Subsidiaries or any other Affiliate (except that (x) any Subsidiary that is a partnership may maintain the same telephone number as its General Partner and (y) any Subsidiary that is a General Partner may maintain the same telephone number as the partnership for which it is the general partner). Notwithstanding anything herein to the contrary in this Section 5.3(o), (x) the provisions of this Section 5.3(o) shall not apply to the ARC Fleetwood Entities and (y) Borrower or any Subsidiary may, from time to time, (x) make lawful distributions in accordance with applicable law or loans on an arm's length basis to its Affiliates subject to the provisions of Section 5.3(o)(viii) above, or (y) obtain loans on an arm's length basis or lawful capital contributions in accordance with applicable law from its Affiliates to the extent not already covered necessary to satisfy its obligations as they become due; provided, however, that all such transactions are accurately reflected in paragraphs (a) through (o) abovethe books and records of Borrower or such Subsidiary, such Originator shall comply and/or act in accordance with all as the case may be, and each of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreementits respective applicable Affiliates.
Appears in 2 contracts
Sources: Loan Agreement (American Retirement Corp), Loan Agreement (American Retirement Corp)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate corporate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by in connection with the Receivables Financing Agreementservicing of the Receivables, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originatorthe Buyer’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer)Buyer;
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer)name;
(g) except as required by the Transaction Documents, such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) except as required by the Transaction Documents, such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) except as required by the Transaction Documents, such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany LoansSubordinated Notes);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(ml) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(nm) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;; and
(on) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Mallinckrodt PLC), Purchase and Sale Agreement (Mallinckrodt PLC)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Loan Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate corporate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes loans thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by in connection with the Receivables Financing Agreementservicing of the Receivables, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originatorthe Buyer’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer)Buyer;
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer)name;
(g) except as required by the Loan Documents, such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) except as required by the Loan Documents, such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) except as required by the Loan Documents, such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(ml) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(nm) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;; and
(on) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Mallinckrodt PLC), Purchase and Sale Agreement (Mallinckrodt PLC)
Separateness Covenants. Each Originator hereby Borrower acknowledges that the Administrator and the Lender are entering into this Agreement and the other Transaction Documents are being entered into in reliance upon the BuyerBorrower’s identity as a legal entity that is separate from such Originator and its Affiliatesany other Person. Therefore, from and after the date hereofof this Agreement, each Originator Borrower shall take all reasonable steps, including without limitation, all steps necessary that the Administrator or the Lender may from time to time reasonably request, to maintain Borrower’s identity as a separate legal entity and to make it apparent manifest to third Persons parties that the Buyer Borrower is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Personseparate legal entity. Without limiting the generality of the foregoing foregoing, Borrower agrees that it has not and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order thatnot:
(a) such Originator shall not be involved engage in any business or activity other than the day to day management ownership and maintenance of the BuyerPledged Assets, and activities incidental thereto;
(b) such Originator shall maintain separate records and books of account from acquire or own any material asset other than the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses)Pledged Assets;
(c) merge into or consolidate with any Person or entity or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, in each case without Lender’s consent;
(d) fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the financial statements and books and records of such Originator shall be prepared after the date of creation laws of the Buyer jurisdiction of its organization or formation, or without the prior written consent of Lender, amend, modify, change, repeal, terminate or fail to reflect and shall reflect comply with the separate existence provisions of Borrower’s certificate of organization, limited liability company agreement or similar organizational documents, as the Buyer; provided, that the Buyer’s assets and liabilities case may be included in a consolidated financial statement issued by an Affiliate of the Buyerbe; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, Borrower may amend its operating agreement without Lender’s’ consent (i) such Originator shall maintain its assets (includingto cure any ambiguity, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assetswith respect to administrative matters, and records relating thereto(iii) to convert or supplement any provision in a manner consistent with the intent of this Agreement, or (iv) if the amendment will not have not been, are not, and shall not be, commingled with those of the Buyera Material Adverse Effect;
(e) such Originator shall not act as an agent for own any subsidiary or make any investment in, any Person or entity without the Buyer (except in the capacity consent of Servicer or a Sub-Servicer)Lender;
(f) such Originator shall not conduct commingle its assets with the assets of any of the business its members, affiliates, principals or of the Buyer in its own name (except in the capacity of Servicer any other Person or a Sub-Servicer)entity;
(g) such Originator shall not pay incur any liabilities of debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than the Buyer out of its own funds Advances provided by Administrator or assetsLender to Borrower pursuant to this Agreement;
(h) such Originator shall maintain an arm’s-length relationship with the Buyerfail to remain solvent;
(i) fail to maintain its records, books of account and bank accounts separate and apart from those of the members, principals and affiliates of Borrower or the affiliates of a member of Borrower or any other Person;
(j) except as otherwise expressly permitted by the Transaction Documents, enter into any contract or agreement with any Affiliate except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any Affiliate or fail to maintain separate financial statements from those of its Affiliates; provided, however, the Borrower’s financial position, assets, liabilities, net worth and operating results may be included in the consolidated financial statements of an Affiliate, provided that such Originator shall not consolidated financial statements contain a footnote indicating that the Borrower is a separate legal entity and that it maintains separate books and records;
(k) seek the dissolution or winding up in whole, or in part, of Borrower or take any action that would cause such entity to become insolvent;
(l) fail to correct any known misunderstandings regarding the separate identity of Borrower or any Affiliate, as the case may be;
(m) maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(n) assume or guarantee or become obligated guaranty the debts of any other Person (other than as provided for in the Transaction Documents), hold itself out to be responsible for the debts of any other Person, or otherwise pledge its assets for the Buyer benefit of any other Person or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer any other Person (other than as provided in the Intercompany Loan Agreement and the Intercompany LoansTransaction Documents);
(ko) make any loans or advances to any third party, including any Affiliate;
(p) fail to either file its own tax returns or file a consolidated federal income tax return with another Person (unless prohibited or required, as the case may be, by applicable law);
(q) fail either to hold itself out to the public as a legal entity separate and distinct from any other entity or Person or to conduct its business solely in its own name in order not (i) to mislead others as to the identity with which such Originator shall other party is transacting business, or (ii) to suggest that Borrower is responsible for the debts of any third party (including any Affiliate of Borrower);
(r) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(s) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors;
(t) share any common logo with or hold itself out as or be considered as a department or division of any principal, member or affiliate of Borrower or any other Person or entity;
(u) fail to allocate fairly and reasonably overhead or other shared expenses that are properly shared with the Buyer, (including, without limitation, shared office spacespace and services performed by an employee of an Affiliate) among the Persons sharing such expenses and to use separate stationery, invoices and checks;
(lv) such Originator shall identify and hold itself out acquire obligations or securities of its members, shareholders of other affiliates, as a separate and distinct entity from the Buyerapplicable;
(mw) such Originator shall correct account for or treat (whether in financial statements or otherwise) the transactions contemplated by the PCA in any known misunderstanding respecting its separate identity from manner other than the Buyersale of the Receivables and the Other Conveyed Property to the Borrower or in any other respect account for or treat the transactions contemplated therein in any manner other than as a sale of the Receivables and the Other Conveyed Property to Borrower;
(nx) such Originator make any revision or amendment to the PCA without the consent of the Lender, which consent shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if anyunreasonably withheld; and
(py) fail to the extent not already covered cause its members, managers, directors, officers, agents and other representatives to act at all times with respect to Borrower consistently and in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all furtherance of the other separateness foregoing and in the best interests of such entity. In the event of any inconsistency between the covenants set forth in this Section 8.03 of 5.02 and the Receivables Financing other covenants set forth in this Agreement, or in the event that any covenant set forth in this Section 5.02 poses a greater restriction or obligation than is set forth elsewhere in this Agreement, the covenants set forth in this Section 5.02 shall control.
Appears in 1 contract
Sources: Revolving Loan and Security Agreement (Freedom Financial Group Inc)
Separateness Covenants. Each Originator hereby acknowledges that Notwithstanding anything in this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting document governing the generality formation, management, or operation of the foregoing and in addition Company to and consistent with the other covenants set forth hereincontrary, such Originator shall take such actions for so long as shall be required in order thatthe Indebtedness is outstanding:
(a) such Originator The following actions shall not be involved taken only upon the prior unanimous written consent of the Member and the two (2) Independent Managers of Member: (a) any Bankruptcy Action with respect to the Company or (b) any action resulting in the day to day management dissolution, merger, liquidation, or consolidation of the Buyer;Company.
(b) such Originator The Company shall maintain separate records and books not amend Sections 5, 9, 14, 16, or 17 of account from this Agreement unless the Buyer and otherwise will observe corporate formalities and have a separate area from Company receives the Buyer for its business (prior written consent of Administrative Agent, which may consent shall not be located at the same address as the Buyerunreasonably withheld, anddelayed, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);or conditioned.
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets The Company shall:
(i) pay its debts and liabilities may be included (including, as applicable, shared personnel overhead expenses) from its assets as the same become due;
(ii) maintain adequate capital in a consolidated financial statement issued by an Affiliate light of the Buyerits contemplated business operations; provided, however, that this clause shall not be construed as requiring Member to make any such consolidated financial statement or capital contributions to the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such AffiliateCompany;
(diii) except as permitted by take all reasonable actions to correct any known misunderstanding regarding the Receivables Financing Agreement, separate identity of such entity;
(iiv) such Originator shall maintain its assets (includingbank accounts, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assetsbooks, and records relating theretoseparate from any other Person;
(v) file its own tax returns, have not beenexcept to the extent that it files or will file consolidated tax returns with another entity or a wholly-owned subsidiary that files returns with its parent company;
(vi) maintain its own financial statements; provided, are nothowever, and the Company shall not be, commingled be permitted to consolidate its financial statements with those of the BuyerMember;
(evii) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in pay its own name (except in the capacity liabilities and expenses, including salaries of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer its own employees, if any, out of its own funds or and assets;
(hviii) such Originator maintain a sufficient number of employees in light of its contemplated business operations or retain a property manager, as applicable;
(ix) observe all limited liability company formalities;
(x) allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, but not limited to, paying for shared office space and services performed by any employee of an Affiliate;
(xi) maintain and use separate stationery, invoices, and checks;
(xii) hold itself out and identify itself as a separate and distinct entity under its own name or a name franchised or licensed to it by an entity other than an Affiliate of the Company and not as a division or part of any other Person; and
(xiii) comply with all of the terms and provisions contained in its organizational documents.
(d) The Company shall maintain an arm’s-length relationship with the Buyer;not:
(i) such Originator shall not assume engage in any business unrelated to the Purpose;
(ii) have or acquire any assets other than those related to the TRS Subsidiary Business;
(iii) engage, seek, or consent to any dissolution, winding up, liquidation, consolidation, merger, or sale of all or substantially all of its assets, except as otherwise permitted in the Loan Agreement or unless there has been a defeasance of the Loan;
(iv) commingle its funds or assets with those of any other Person;
(v) have any Indebtedness other than as permitted under the Loan Documents;
(vi) guarantee or become obligated for the debts bets of the Buyer any other Person or hold out its credit or assets as being available for the benefit or to satisfy the obligations of any other Person, except under that certain Subsidiary Guaranty and Pledge Agreement attached as Exhibit M to the BuyerLoan Agreement or as otherwise permitted by the Loan Agreement;
(jvii) such Originator shall not acquire obligations or securities of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans)its members or any Affiliate;
(kviii) such Originator shall allocate fairly make any loans to any Person or hold evidence of indebtedness issued by any other Person or entity other than cash and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office spaceinvestment-grade securities;
(lix) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, into or be a party to, to any transaction with the Buyerits members or Affiliates, except in the ordinary course of its business and on terms those which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if anycommercially reasonable; and
(px) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreementindemnify any members.
Appears in 1 contract
Sources: Secured Revolving Credit Agreement (Taubman Centers Inc)
Separateness Covenants. Each Originator hereby acknowledges In order to maintain its status as a separate entity and with the intent to avoid consolidation with any Affiliate, each of Borrower and Operating Lessee represents and warrants that this Agreement in the conduct of its operations since its organization it has and will continue through the date the Loan is repaid in full to observe the following covenants (collectively, the “Separateness Provisions”): (i) maintain books and records and bank accounts separate from those of any other person or entity; (ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets; (iii) comply with all organizational formalities necessary to maintain its separate existence; (iv) hold itself out to creditors and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity public as a legal entity separate and distinct from such Originator and any other entity; (v) maintain separate financial statements, showing its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct separate and apart from those of such Originator and any other Person, Person and is not a division have its assets listed on any financial statement of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent person or entity except that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the BuyerBorrower’s or Operating Lessee’s assets and liabilities may be included in a consolidated financial statement issued by an of its’ Affiliate of the Buyer; provided, however, that any so long as appropriate notation is made on such consolidated financial statement statements to indicate the separateness of Borrower or the notes thereto shall make clear Operating Lessee, as applicable, from such Affiliate and to indicate that the BuyerBorrower’s or Operating Lessee’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate;
Affiliate or any other person or entity; (dvi) except as permitted prepare and file its own tax returns separate from those of any person or entity to the extent required by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assetsapplicable law, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds taxes required to be paid by applicable law; (vii) allocate and charge fairly and reasonably any common employee or assets;
overhead shared with Affiliates; (hviii) such Originator shall maintain not enter into any transaction with any Affiliate, except on an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and basis on terms which are intrinsically fair and not no less favorable to it than would be obtained available for unaffiliated third parties (which for the avoidance of doubt shall include the Operating Lease); (ix) conduct business in a comparable arm’s-length transaction its own name, and use separate stationery, invoices and checks bearing its own name; (x) not commingle its assets or funds with an unrelated third party;
those of any other person or entity except in accordance with the Management Agreement; (oxi) such Originator shall not assume, guarantee or pay the salaries debts or obligations of any other person or entity other than debts or obligations arising under the Buyer’s employees, if anyLoan Documents; and
(pxii) use commercially reasonable efforts to correct any known misunderstanding as to its separate identity; (xiii) not permit any Affiliate to guarantee or pay its obligations (other than limited guarantees and indemnities pursuant to the Loan Documents); (xiv) not make loans or advances to any other person or entity; (xv) pay its liabilities and expenses out of and to the extent of its own funds; (xvi) [intentionally omitted]; (xvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not already covered require any equity owner to make additional capital contributions to Borrower or Operating Lessee nor shall the breach thereof create any liability for the Guarantors; and (xviii) use commercially reasonable efforts to cause the managers, officers, employees, agents and other representatives of Borrower and Operating Lessee to act with respect to Borrower and Operating Lessee, respectively, consistently and in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all furtherance of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreementforegoing.
Appears in 1 contract
Sources: Loan Agreement (Ryman Hospitality Properties, Inc.)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement Before the initial closing of the Financing Transaction and thereafter until the Final Day, the Company shall, and each Member shall cause the Company to, at all times conduct its affairs in the following manner:
(i) the business and affairs of the Company will be managed by or under the direction of its Board of Managers;
(ii) the Company shall hold regular duly noticed meetings of its Board of Managers and make and retain minutes of such meetings;
(iii) the Company’s funds and other Transaction Documents are being entered into assets will be identifiable and will not be commingled with those of any direct or ultimate parent of the Company or any subsidiary or Affiliate of any such parent (except for any permitted commingling pursuant to the RPA and any incidental commingling in reliance upon the Buyer’s identity case of any misdirected payment of a Receivable, in which case such commingled funds shall be identified and separated as a legal entity separate from such Originator and its Affiliates. Therefore, from and soon as practicable after the date hereofreceipt of such payment);
(iv) the Company shall not direct or participate in the management of any of the Other Companies’ (as defined in the RPA) operations;
(v) the Company will maintain bank accounts, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets limited liability company records, and liabilities distinct books of accounts separate from those of such Originator any Affiliate of the Company;
(vi) the Company will pay from its own funds and any other Personassets all obligations indebtedness, liabilities, and operating expenses incurred by it, including the salaries of its own employees, if any;
(vii) the Company shall not make loans, advances, or otherwise extend credit or incur any debt other than unsecured trade debt that is not a division of such Originator, its Affiliates or any other Person. Without limiting incidental to the generality business of the foregoing and Company;
(viii) the Company shall not engage in addition to and consistent with the any business or activity other covenants than as set forth herein, such Originator herein or in the Program Documents;
(ix) the Company shall take such actions as shall be required in order that:
not enter into transactions with Affiliates unless (a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets transactions are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain on an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement basis and the Intercompany Loans);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business on commercially reasonable terms and on terms which are intrinsically fair and not no less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third partyparty and (b) such transactions are permitted by the RPA;
(ox) the Company shall promptly obtain bills of sale (or similar instruments of assignment) and, if appropriate, properly file UCC-1 financing statements, with respect to all assets purchased from any other Person or entity;
(xi) the Company shall hold itself out to the public under the Company’s own name as a legal entity separate and distinct from any other Person, entity or Affiliates and shall correct any known misunderstanding regarding its own separate and distinct identity;
(xii) the Company shall maintain its assets and transactions separately from those of any other Person or entity and reflect such Originator assets and transactions in financial statements separate and distinct from those of any other Person or entity, unless for financial statement reporting purposes such assets and transactions are required under generally accepted accounting principles to be consolidated with the assets and transactions of any other person or entity, in which case such consolidated financial statements shall not contain detailed notes clearly stating that (a) all of the Company’s assets are owned by the Company; (b) the Company is a separate legal entity and its separate assets and liabilities are neither available to pay the salaries debts of the Buyerconsolidated entity or of any other member of such consolidated entity nor constitute obligations of the consolidated entity or of any other member of such consolidated entity; and (c) the Company’s business consists of the purchase or other acquisition of Receivables and related assets from the Originators and the subsequent sale, transfer, or pledge of Receivables and related assets) and evidence such assets and transactions by appropriate entries in books and records separate and distinct from those of any other Person or entity;
(xiii) the Company shall observe all limited liability company, organizational, and other legal formalities;
(xiv) the Company shall maintain a sufficient number of employees, if any, in light of its contemplated business operations;
(xv) the Company shall not hold itself out as having agreed to pay, or as being liable, primarily or secondarily, for any obligations of any other person or entity;
(xvi) the Company shall not maintain any joint account with any other Person or guarantee, acquire, or become liable as a guarantor or otherwise with respect to any debt, obligations or securities of any of its Members or its Affiliates;
(xvii) the Company shall not make loans to any other Person or entity or buy or hold evidence of indebtedness issued by any other Person or entity (other than as permitted by the RPA or the PCA);
(xviii) the Company shall allocate fairly and reasonably pursuant to written agreements any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(xix) the Company shall conduct its business from an office separate from that of any other Person or entity (but which may be located in the same facility as one or more of any other Person or entity). The Company shall have stationery, other business forms, and checks and a mailing address and a telephone number bearing its own name and separate from that of any other Person or entity;
(xx) the Company shall not pledge its assets for the benefit of any other person or entity;
(xxi) the Company shall not make any payment or distribution of assets with respect to any obligation of any Affiliate or grant an Adverse Claim, as defined in the RPA, on any of its assets to secure any obligations of any Affiliate;
(xxii) the Company shall not identify itself as a division of any Affiliate or any other Person or entity;
(xxiii) the Company shall maintain adequate capital in light of its contemplated business operations; and
(pxxiv) to the extent not already covered in paragraphs (a) through (o) above, such Originator Company shall comply and/or act in accordance with all file tax returns separate from those of the each other separateness covenants set forth in Section 8.03 of the Receivables Financing AgreementAffiliate except as may be otherwise required or permitted by law.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Celanese Americas CORP)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third 708335522 13436693 Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and renders or otherwise furnishes services to the Buyer, it will be compensated by the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of for such expenses)services;
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany LoansSubordinated Notes);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
; 708335522 13436693 (m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement.
Appears in 1 contract
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Basic Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its other Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other PersonOriginator, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate corporate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, Buyer and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer so as to reflect reflect, and shall reflect reflect, the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as unless (but only to the extent) otherwise permitted by the Receivables Financing AgreementRLSA, (i) such Originator shall maintain its assets property (including, without limitation, including deposit accounts) separately from the assets property (including, without limitation, including deposit accounts) of the Buyer and (ii) such Originator’s assetsproperty, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement.
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its other Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other PersonOriginator, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate corporate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer Cut-Off Date to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer Buyer, and (ii) such Originatorthe Buyer’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-ServicerServicer in accordance with the Transaction Documents);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-ServicerServicer in accordance with the Transaction Documents);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany LoansSubordinated Notes);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) except under or as contemplated by the Receivables Financing Agreement or this Agreement, such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement, to the extent applicable to such Originator.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such the Originator and its Affiliates. Therefore, from and after the date hereof, each the Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator the Originators and any other PersonPersons, and is not a division of such any Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such each Originator shall take such actions as shall be required in order that:
(a) such the Originator (other than Fortrea, solely in accordance with its rights and obligations under the Buyer’s limited liability company agreement) shall not be involved in the day to day management of the Buyer;
(b) such the Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such the Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Purchase Agreement, (i) such the Originator shall maintain its assets (including, without limitation, including deposit accounts) separately from the assets (including, without limitation, including deposit accounts) of the Buyer and (ii) such the Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such the Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such the Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such the Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such the Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such the Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such the Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans)Buyer;
(k) such the Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, including shared office space;
(l) such the Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such the Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such the Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such the Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such the Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 7.03 of the Receivables Financing Purchase Agreement.
Appears in 1 contract
Sources: Sale and Contribution Agreement (Fortrea Holdings Inc.)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such each Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator each Originators and any other PersonPersons, and is not a division of such any Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such each Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the BuyerSPV;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, including deposit accounts) separately from the assets (including, without limitation, including deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans)Buyer;
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, including shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 7.03 of the Receivables Financing Agreement.
Appears in 1 contract
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer; provided that QINC may participate in the management of the Buyer as a member thereof in accordance with the Buyer’s Limited Liability Company Agreement and Section 8.03 of the Receivables Financing Agreement;
(b) such Originator shall maintain separate corporate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originatorthe Buyer’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-ServicerServicer in accordance with the Transaction Documents);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-ServicerServicer in accordance with the Transaction Documents);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany LoansSubordinated Notes);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Quintiles Transnational Holdings Inc.)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its other Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other PersonOriginator, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate corporate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer Cut-Off Date to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originatorthe Buyer’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-ServicerServicer in accordance with the Transaction Documents);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-ServicerServicer in accordance with the Transaction Documents);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement Subordinated Notes and the Intercompany LoansPre-Existing Subordinated Note owed to Volt);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) except under or as contemplated by the Receivables Financing Agreement or this Agreement, such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement, to the extent applicable to such Originator.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each such Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator Originators and any other PersonPersons, and is not a division of such any Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such each Originator shall take such actions as shall be required in order that:
(a) such Originator (other than MativNeenah , solely in accordance with its rights and obligations under the Buyer’s limited liability company agreement) shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Purchase Agreement, (i) such Originator shall maintain its assets (including, without limitation, including deposit accounts) separately from the assets (including, without limitation, including deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement.
Appears in 1 contract
Sources: Sale and Contribution Agreement (Mativ Holdings, Inc.)
Separateness Covenants. Each Originator hereby acknowledges In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of Borrower, each Borrower represents and warrants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, the following covenants:
(i) maintain books and records and bank accounts separate from those of any other Person;
(ii) except the commingling of assets permitted pursuant to the terms of this Agreement Agreement, maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds;
(iii) comply with all organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity public as a legal entity separate and distinct from such Originator and any other entity;
(v) maintain separate financial statements, showing its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct separate and apart from those of such Originator any other Person and not have its assets listed on any financial statement of any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent ; except that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s Borrowers’ assets and liabilities may be included in a consolidated financial statement issued by an of its Affiliate of the Buyer; provided, however, that any so long as appropriate notation is made on such consolidated financial statement or statements to indicate the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations separateness of Borrowers from such Affiliate;
(dvi) except as permitted by other than with respect to the Receivables Financing Agreementconsolidated tax return of its Affiliates, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating theretoother than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), have not been, are notprepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Law, and shall not be, commingled with those pay any taxes required to be paid by Requirements of the BuyerLaw;
(evii) such Originator shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not act as limited to, paying for shared office space and for services performed by any employee of an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer)Affiliate;
(fviii) such Originator shall not conduct enter into any transaction with any Person owned or controlled by an Affiliate of the business of the Buyer in its own name (Borrowers except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain on an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and basis on terms which are intrinsically fair and not no less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated available for unaffiliated third partyparties, and pursuant to written, enforceable agreements;
(oix) such Originator [reserved]; CONA – Healthcare Trust, Inc. 92119388.8
(x) not commingle its assets or funds with those of any other Person other than as required or permitted by this Agreement;
(xi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other Borrowers;
(xii) correct any known misunderstanding as to its separate identity;
(xiii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than as set forth in this Agreement and in the limited guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity Agreement);
(xiv) not make loans or advances to any other Person;
(xv) pay its liabilities and expenses out of and to the extent of its own funds (and that of the other Borrowers as provided in this Agreement) and provided, however, the foregoing shall not require any owners of any Borrower to make capital contributions to any Borrower;
(xvi) pay the salaries of the Buyer’s their own employees, if any, only from its own funds;
(xvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities to the extent of sufficient cash flow from the applicable Project; provided, however, that the foregoing shall not require any equity owner to make capital contributions to any Borrower;
(xviii) cause the managers, officers, employees, agents and other representatives of such Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xix) except as expressly provided in this Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(pxx) except as otherwise provided in this Agreement or in any other Loan Document, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the extent not already covered in paragraphs (a) through (o) above, such Originator shall Loan. Failure of any Borrower to comply and/or act in accordance with all any of the foregoing covenants or any other separateness covenants set forth contained in Section 8.03 this Agreement shall not affect the status of the Receivables Financing Agreement.any other Borrower as a separate legal entity. CONA – Healthcare Trust, Inc. 92119388.8
Appears in 1 contract
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s 's identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate corporate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s 's assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s 's assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Purchase Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s the Buyer's assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’sarm's-length relationship with the Buyer;
; (i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement.
Appears in 1 contract
Separateness Covenants. Each Originator hereby acknowledges that Until the Facility Termination, except as set forth below, each of the ▇▇▇▇▇▇▇▇ Parties (as applicable) covenants and agrees as follows:
(a) The Seller will at all times maintain at least one independent director or manager who (i) is not currently and has not been during the five years preceding the date of this Agreement an officer, director or employee of any of the Parent, ▇▇▇▇▇▇▇▇, any other Originator, the Servicer, or any of their respective Affiliates or Subsidiaries (except the Seller) (collectively, the “Other Companies”), (ii) is not a current or former officer or employee of the Seller, (iii) is not a stockholder of any of the Other Companies or any of their respective Affiliates, and (iv) who (A) has prior experience as an independent director for a corporation or manager for a limited liability company whose charter documents required the unanimous consent of all independent directors thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (B) has at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. The Seller will provide not less than 30 business days’ prior written notice to the Administrative Agent and the Facility Agents in the event of the replacement of the Seller’s independent director or manager;
(b) The Seller will conduct its business in its own name and from an office separate from that of the Other Companies (but which may be located in the same facility as one or more of the Other Companies). The Seller will have stationery and other Transaction Documents are being entered into business forms separate from that of the Other Companies;
(c) The Seller will at all times be adequately capitalized in reliance upon light of its contemplated business;
(d) The Seller will at all times provide for its own operating expenses and liabilities from its own funds except that common overhead expenses may be shared by the BuyerSeller one or more of the Other Companies on a basis reasonably related to use;
(e) The Seller will maintain its assets and transactions separately from those of the Other Companies and reflect such assets and transactions in financial statements separate and distinct from those of the Other Companies and evidence such assets and transactions by appropriate entries in books and records separate and distinct from those of the Other Companies. The Seller will hold itself out to the public under the Seller’s identity own name as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and the Other Companies. The Seller will not hold itself out as having agreed to pay, or as being liable, primarily or secondarily, for, any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality obligations of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer)Other Companies;
(f) The Seller will hold at least one annual duly noticed meeting of its board of directors, make and retain minutes of such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or meetings and otherwise observe all limited liability company formalities as a Sub-Servicer)distinct entity;
(g) such Originator shall not pay The Seller will prepare its financial statements separately from those of any liabilities of the Buyer out Other Companies and will insure that any consolidated financial statements of any Other Company that are filed with the SEC or any other Official Body or are furnished to any creditors of any Other Company will include notes clearly stating that the Seller is a separate corporate entity and that its own funds or assetsassets are available first and foremost to satisfy the claims of the creditors of the Seller;
(h) such Originator shall maintain an arm’s-length relationship with The Seller will not direct or participate in the Buyermanagement of any of the Other Companies’ operations;
(i) such Originator shall The Seller will not assume or guarantee maintain any joint account with any Other Company or become obligated for the debts liable as a guarantor or otherwise with respect to, or grant a security interest in any of the Buyer its assets to secure, any debt or hold out its credit as being available to satisfy the obligations contractual obligation of the Buyerany Other Company;
(j) such Originator shall The Seller will not acquire obligations engage in any transaction with, or make loans, advances or otherwise extend credit to, any of the Buyer (other than Other Companies except as expressly contemplated by the Intercompany Loan Agreement and the Intercompany Loans)Transaction Documents;
(k) The Seller will maintain its Limited Liability Company Agreement in conformity with this Agreement such Originator shall allocate fairly and reasonably overhead that it does not amend, restate, supplement or other expenses otherwise modify its Limited Liability Company Agreement in any respect that are properly shared would impair its ability to comply with the Buyer, including, without limitation, shared office spaceterms or provisions of any of the Transaction Documents;
(l) such Originator shall identify and hold itself out Such ▇▇▇▇▇▇▇▇ Party (other than the Seller) will take all actions necessary to maintain the Seller as a separate separate, limited purpose subsidiary of ▇▇▇▇▇▇▇▇ pursuant to, and distinct entity from in accordance with the Buyer;terms of, the Seller’s Limited Liability Company Agreement; and
(m) Such ▇▇▇▇▇▇▇▇ Party (other than the Seller) will take such Originator shall correct any known misunderstanding respecting other actions as are necessary on its separate identity from part to ensure that the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business facts and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants assumptions set forth in Section 8.03 the opinion issued by ▇▇▇▇▇ ▇▇▇▇▇ LLP, as counsel for Seller, in connection with the closing of the Receivables Financing AgreementFacility and relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate corporate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Purchase Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originatorthe Buyer’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans)Buyer;
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (op) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 3 of Exhibit IV to the Receivables Financing Purchase Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (LyondellBasell Industries N.V.)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement The Company and the other Transaction Documents are being entered into in reliance upon Board of Managers on behalf of the BuyerCompany, shall:
(i) Maintain the Company’s identity as a legal entity books and records separate from such Originator those of any other Person;
(ii) Maintain the Company’s bank accounts separate from the bank account of any other Person;
(iii) Not commingle the Company’s assets with those of any Affiliate or constituent party or Person and to hold all of its Affiliates. Thereforeassets in the Company’s own name;
(iv) Conduct the Company’s business in the Company’s name;
(v) Maintain separate financial statements, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with showing its assets and liabilities distinct separate and apart from those of such Originator any other Person and not to have its assets listed on the financial statement of any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such the Company may include its financial statements as part of a consolidated financial statement or the notes thereto shall make if (A) such statements contain a notation that makes clear that the Buyer’s Company is a separate entity and that the assets of the Company are not available to satisfy liabilities of any other Person and the obligations assets of such Affiliateother Person are not available to satisfy liabilities of the Company (except as otherwise provided in the Loan Documents) and (B) the Company’s assets and liabilities are listed on the Company’s own separate financial statements;
(da) File its own tax returns separate from those of any other Person, except to the extent that (A) the Company is treated as permitted by a “disregarded entity” for tax purposes and is not required to file tax returns under applicable law or (B) it is allowed to file consolidated tax returns, in which case the Receivables Financing AgreementCompany may include its taxable income, (i) such Originator shall maintain its assets (includingloss, without limitationdeductions, deposit accounts) separately from the assets (including, without limitation, deposit accounts) gains or other items as part of the Buyer a consolidated tax return and (iib) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyerpay any taxes required to be paid under applicable law;
(evii) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in Pay its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer and expenses only out of its own funds or assetsfunds, provided, however, that the foregoing shall not require the Member to make any additional capital contributions to the Company;
(hviii) such Originator shall Observe all organizational formalities necessary to maintain an arm’sits separate existence and preserve its existence in good standing as a single-length relationship with member limited liability company under the Buyerlaws of the State of Delaware;
(iix) such Originator Not enter into transactions with an Affiliate except on commercially reasonable terms similar to those available to unaffiliated parties in an arms-length transaction;
(x) Pay the salaries of its own employees, if any, only from its own funds, provided, however, that the foregoing shall not assume or require the Member to make any additional capital contributions to the Company;
(xi) Maintain a sufficient number of employees in light of its contemplated business purpose, transactions and liabilities;
(xii) Not guarantee any obligation of any Person, including an Affiliate, or become obligated for the debts of the Buyer or any Person;
(xiii) Not hold out its credit as being available to satisfy the obligations of the Buyerany other Person;
(jxiv) such Originator shall not Not acquire any obligations or securities of its Affiliates or owners, including partners, members or shareholders, as appropriate;
(xv) Not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that the Company may invest in those investments permitted under the Loan Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Buyer Loan Documents (other than and permit the Intercompany Loan Agreement and the Intercompany Loanssame to remain outstanding in accordance with such provisions);
(kxvi) such Originator shall allocate Allocate fairly and reasonably any overhead or other expenses that are properly shared with the Buyeran Affiliate, including, without limitation, shared including paying for office spacespace and services performed by any employee of an Affiliate;
(lxvii) such Originator shall identify Use separate stationery, invoices, and hold itself out as a separate and distinct entity from the Buyerchecks bearing its own name;
(mxviii) such Originator shall correct Not pledge its assets for the benefit of any other Person, other than to Lender to secure the Loan;
(xix) Hold itself out to the public and all other Persons as a legal entity separate from that of any other Person;
(xx) Correct any known misunderstanding respecting regarding its separate identity from the Buyeridentity;
(nxxi) such Originator shall not enter into, or be Not identify itself as a party to, division of any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third partyother Person;
(oxxii) such Originator Maintain capital adequate for businesses of its size and character in light of its contemplated business purposes, transactions and liabilities, provided, however, that the foregoing shall not pay require the salaries Member to make any additional capital contributions to the Company;
(xxiii) Not form, acquire or hold any subsidiary or own any equity interest in any entity;
(xxiv) Not hold out the assets or the creditworthiness of any Person as being available for the payment of any liability of the Buyer’s employeesCompany;
(xxv) Not engage, if anydirectly or indirectly, in any business other than as described in Section 3.1 and not engage in any activity except those required to be performed under the Loan Documents or this Section 9.3 or as permitted to be performed under all of them;
(xxvi) Cause its Board of Managers to act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities;
(xxvii) Cause the Member, the Managers and other representatives of the Company to act at all times with respect to the Company consistently and in furtherance of the foregoing and in the best interests of the Company;
(xxviii) Not buy or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securities);
(xxix) Maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person; and
(pxxx) Not own any real property other than the Mortgaged Premises and not own any personal property that is not necessary or incidental to the extent not already covered pursuit of its business purposes as described in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all Section 3.1; Failure of the other separateness covenants set forth in Section 8.03 Company, the Member or the Managers on behalf of the Receivables Financing AgreementCompany, to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member.
Appears in 1 contract
Sources: Limited Liability Company Agreement (CBL/Regency I, LLC)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are This Section 12 is being entered into adopted in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary order to make it apparent to third Persons that the Buyer is an entity comply with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be certain provisions required in order thatto qualify the Company as a “special purpose entity”. The Company shall conduct its affairs in the following manner:
(ai) such Originator the Company’s assets shall not be involved commingled with those of any other Person (except for the temporary commingling of collections as specifically provided in the day agreements under which the Company effects the transactions with respect to day management of the BuyerCompany assets contemplated by Section 7);
(bii) such Originator the Company shall maintain separate (A) correct and complete corporate records and books of account from and minutes of the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it meetings and the Buyer have offices in the same locationother proceedings of its Member and Managers and (B) such records, there shall be a fair books and appropriate allocation minutes separate from those of overhead costs between them, and each shall bear its fair share of such expenses)any other Person;
(ciii) the financial statements Company shall have its own principal executive and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; providedadministrative office through which its business is conducted (which, however, that may be within the premises of and leased from any such consolidated financial statement or member of the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations Parent Group) separate from those of such Affiliateany Person;
(div) except as permitted by the Receivables Financing Agreement, (i) such Originator Company shall maintain conduct its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyerown affairs in its own name;
(ev) such Originator the Company shall not act as an agent for the Buyer (except maintain and periodically prepare separate financial statements in the capacity of Servicer or a Sub-Servicer)accordance with GAAP;
(fvi) such Originator the Company shall not conduct any of the business of the Buyer in pay its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assetsfunds;
(hvii) such Originator the Company shall strictly observe all organizational formalities, including holding appropriate meetings in connection with the activities of the Member, required by the Act, the Certificate of Formation or this Agreement;
(viii) the Company shall maintain an “arm’s-length relationship relationship” with its Affiliates and the BuyerMember and cause all business transactions entered into by the Company with any of its Affiliates to be on terms that are not more or less favorable to the Company, as the case may be, than terms and conditions available at the time to the Company for comparable arm’s-length transactions with unaffiliated Persons;
(iix) such Originator the Company shall pay the salaries, if any, of its own Managers and employees, if any;
(x) the Company shall not assume or guarantee or become obligated for the debts of the Buyer any other Person, including any Affiliate, or hold out its credit as being available to satisfy the obligations of others, except as provided or contemplated in the BuyerTransaction Documents;
(jxi) such Originator the Company shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans);
(k) such Originator shall maintain separate office space and/or allocate fairly and reasonably any overhead or other expenses that are properly for office space shared with the Buyer, including, without limitation, shared office spaceany other Person;
(lxii) such Originator the Company shall identify use stationery, invoices, checks and telephone numbers through which all business correspondence and communication are conducted separate from those of any other Person;
(xiii) the Company shall not pledge its assets for the benefit of any other Person except pursuant to the purposes and activities set forth in Sections 7 and 8;
(xiv) the Company shall hold itself out at all times as a legal entity separate from its Member or any other Person and distinct entity from shall not merge into or consolidate with any Person, dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets, change its legal structure, or permit any transfer of any of its direct ownership interests, except as permitted by the BuyerTransaction Documents;
(mxv) such Originator the Company shall not engage, directly or indirectly, in any business or purposes other than as required or permitted under Sections 7 and 12;
(xvi) the Company shall correct any known misunderstanding respecting regarding its separate identity from the Buyerexistence and identity;
(nxvii) such Originator the Company shall not enter into, or be a party to, any transaction with the Buyer, except maintain adequate capital in the ordinary course light of its contemplated business purpose, transactions and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third partyliabilities;
(oxviii) the Company shall cause its Managers to meet at least annually or act pursuant to written consent and keep minutes of such Originator meetings and actions and observe all other Delaware limited liability company formalities;
(xix) the Company shall not pay the salaries acquire any securities of the Buyer’s employeesMember or any of its Affiliates or own any material assets other than the Receivables and related assets from the Member and any incidental property as may be necessary for the operation of the Company;
(xx) the Company shall cause its Managers, if anyOfficers, agents and other representatives to act at all times with respect to it consistently and in furtherance of the foregoing;
(xxi) the Company shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) except as permitted under the Transaction Documents;
(xxii) the Company shall comply with the provisions of this Agreement;
(xxiii) the Company shall not incur, create or assume any debt except pursuant to the purposes and activities set forth in Sections 7 and 8; and
(pxxv) the Company shall so long as the Obligations are outstanding, and upon the request of the Agent, comply with any reasonable and customary requirements for special purpose entities that a nationally recognized statistical rating agency may request. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or any Manager. Furthermore, none of the foregoing covenants or any other covenants contained in this Agreement shall require the Member to make any additional capital contributions to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing AgreementCompany.
Appears in 1 contract
Sources: Limited Liability Company Agreement (GNMAG Asset Backed Securitizations, LLC)
Separateness Covenants. Each Originator hereby The Borrower acknowledges that the Lenders are entering into this Agreement and making the other Transaction Documents are being entered into Loans in reliance upon the Buyer’s Borrower's identity as a legal entity that is separate from such Originator the Seller and its Affiliatesall other Persons. Therefore, from and after the date hereofof this Agreement, each Originator the Borrower shall take all reasonable steps, including without limitation, all steps necessary that the Facility Agent may from time to time reasonably request, to maintain the Borrower's identity as a separate legal entity and to make it apparent manifest to third Persons parties that the Buyer Borrower is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Personseparate legal entity. Without limiting the generality of the foregoing foregoing, and in addition to its other undertakings and consistent with agreements hereunder, the other covenants set forth herein, such Originator Borrower agrees that it shall take such actions as shall be required in order thatnot:
(a) such Originator shall not be involved engage in any business or activity other than the day Intercompany Loan, the Intercompany Loan Agreement and those contemplated under the Credit Documents to day management which it is a party, and activities incidental thereto, including, to the extent in compliance with the terms hereof and of the Buyerother Credit Documents, the Intercompany Loan and Intercompany Loan Agreement;
(b) acquire or own any material asset other than: (i) the Collateral, (ii) cash and Permitted Investments owned by the Borrower from time to time in accordance with this Agreement and (iii) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for other incidental personal property as may be necessary to conduct its business as contemplated in clause (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses)a) above;
(c) commingle its assets with the assets of any of its members, Affiliates, principals or any other Person;
(d) fail to remain Solvent;
(e) fail to maintain its records, books of account and bank accounts separate and apart from those of its members, principals and Affiliates or the Affiliates of any of its members or any other Person;
(f) enter into any Contractual Obligation with any of its members, principals or Affiliates or the Affiliates of any of its members, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties;
(g) fail to prepare and maintain separate financial statements from those of its members, principals and books and records Affiliates or the Affiliates of such Originator shall be prepared after the date any of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyerits members or any other Person; provided, however, the Borrower’s financial position, assets, liabilities, net worth and operating results may be included in the consolidated financial statements of the Seller, provided that any such consolidated financial statement or the statements contain detailed notes thereto shall make clear clearly stating that the Buyer’s Borrower is the owner of the Royalties Receivables, is a separate legal entity and that its assets are not (other than the Excluded Property) will be available first and foremost to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) claims of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those creditors of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assetsBorrower;
(h) such Originator shall maintain an arm’s-length relationship with fail to correct any known misunderstandings regarding the Buyerseparate identity of the Borrower or any member, as the case may be;
(i) maintain its assets in such Originator shall not a manner that it will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(j) assume or guarantee or become obligated guaranty the debts of any other Person, hold itself out to be responsible for the debts of any other Person, or otherwise pledge or ▇▇▇▇▇ ▇ ▇▇▇▇ on any of its assets for the Buyer benefit of any other Person, extend credit to or hold out its credit as being available to satisfy the obligations of any other Person, in each case other than as provided under the Buyerterms of this Agreement; provided, that the Borrower may extend credit to the Seller in the form of the Intercompany Loan in compliance with the terms hereof and the Intercompany Loan Agreement.
(k) incur any Indebtedness, secured or unsecured, direct or contingent, other than the Obligations;
(jl) such Originator shall not acquire obligations of fail to either file its own tax returns or file a consolidated federal income tax return with another Person (unless prohibited or required, as the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loanscase may be, by Applicable Law);
(km) fail either to hold itself out to the public as a legal entity separate and distinct from any other entity or Person or to conduct its business solely in its own name in order not to mislead others as to the identity with which such Originator shall other party is transacting business;
(n) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(o) seek the dissolution or winding up in whole, or in part, of the Borrower or file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors;
(p) share any common logo with or hold itself out as or be considered as a department or division of any general partner, principal, member or Affiliate of the Borrower or any other Person or entity;
(q) fail to allocate fairly and reasonably overhead or other shared expenses that are properly shared with the Buyer, (including, without limitation, shared office spacespace and services performed by an employee of an Affiliate) among the Persons sharing such expenses and to use separate stationery, invoices and checks;
(lr) such Originator shall identify other than the Intercompany Loan and hold itself out as a separate and distinct entity from Intercompany Loan Agreement, acquire obligations or securities of its members, principals or Affiliates or the BuyerAffiliates of any of its members or any other Person;
(ms) such Originator shall correct violate or cause to be violated the assumptions made with respect to the Borrower in any known misunderstanding respecting its separate identity from opinion letter pertaining to substantive consolidation delivered to the BuyerFacility Agent in connection with the Credit Documents;
(nt) such Originator shall not enter intofail at any time to have at least one Independent Manager;
(u) fail to hold regular meetings, or be action by unanimous written consent in lieu of a party tomeeting, any transaction with the Buyeras appropriate, except in the ordinary course of to conduct its business and on terms which are intrinsically fair observe all limited liability company formalities and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third partyrecord keeping;
(ov) such Originator shall not pay account for or treat (whether in financial statements or otherwise) the salaries transactions contemplated by the Royalties Sale and Contribution Agreement in any manner other than the sale and contribution of the Buyer’s employees, if anyRoyalties Receivables to the Borrower or in any other respect account for or treat the transactions contemplated therein in any manner other than as a sale and contribution of the Royalties Receivables; and
(pw) fail to cause its members, managers, directors, officers, agents and other representatives to act at all times with respect to the extent not already covered Borrower consistently and in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all furtherance of the other separateness foregoing; provided, that, in the event of any inconsistency between the covenants set forth in this Section 8.03 5.04 and the other covenants set forth in this Agreement or any other Credit Document or Organizational Document of the Receivables Financing AgreementBorrower, so long as it will not result in a breach of any provision of this Agreement or any other Credit Agreement or Organizational Documents of the Borrower, the covenant that poses the greatest restriction or obligation shall control.
Appears in 1 contract
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate corporate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originatorthe Buyer’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-ServicerServicer in accordance with the Transaction Documents);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-ServicerServicer in accordance with the Transaction Documents);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany LoansSubordinated Notes);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the BuyerBuyer of which such Originator has actual knowledge;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 7.03 of the Receivables Financing Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Integra Lifesciences Holdings Corp)
Separateness Covenants. Covenants with Respect to Indebtedness, Operations and Fundamental Changes of an Individual BORROWER
18.1 Each Originator Individual Borrower, for itself, hereby acknowledges that this Agreement represents, warrants and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity covenants, as a legal entity separate from such Originator and its Affiliates. Therefore, from and after of the date hereofhereof and until such time as the Notes are paid in full, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order thatIndividual Borrower:
(a) such Originator shall not be involved in (i) liquidate or dissolve (or suffer any liquidation or dissolution), terminate, or otherwise dispose of, directly, indirectly or by operation of law, all or substantially all of its assets; (ii) reorganize or change its legal structure without Lender's prior written consent, except as otherwise expressly permitted under the day to day management Article herein entitled "Prohibition on Transfer"; (iii) change its name, address, or the name under which Individual Borrower conducts its business without promptly notifying Lender; (iv) enter into or consummate any merger, consolidation, sale, transfer, assignment, liquidation, or dissolution involving any or all of the Buyerassets of Individual Borrower or any general partner or managing member of Individual Borrower, except as otherwise expressly permitted under the Article herein entitled "Prohibition on Transfer"; or (v) enter into or consummate any transaction or acquisition, merger or consolidation or otherwise acquire by purchase or otherwise all or any portion of the business or assets of, or any stock or other evidence of beneficial ownership of, any person or entity;
(b) such Originator shall maintain separate records has not, except for any secured or unsecured debt which has been paid in full on or before the date hereof, incurred any secured or unsecured debt except for customary and books of account from the Buyer reasonable short term trade payables or equipment financing obtained and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices repaid in the same location, there shall be a fair and appropriate allocation ordinary course of overhead costs between themsuch Individual Borrower's business, and each (ii) shall bear its fair share not incur any secured or unsecured debt except for customary and reasonable short term trade payables or equipment financing obtained and repaid in the ordinary course of such expenses)Individual Borrower's business;
(c) the financial statements and books and records shall not amend, modify or otherwise change its operating agreement, articles of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; providedorganization, that the Buyer’s assets and liabilities may be included or other formation agreement or document, as applicable, or governing agreement or document, in any material term or manner, or in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any manner which adversely affects such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such AffiliateIndividual Borrower's existence as a single purpose entity;
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans);
(k) such Originator shall allocate fairly and reasonably any rent, overhead or other and expenses that are properly shared with the Buyer, including, without limitation, for shared office space;
(le) shall maintain correct and complete financial statements, accounts, books and records and other entity documents separate from those of any Affiliate (as hereinafter defined) of same or any other person or entity.
(f) shall observe all customary formalities regarding the existence of such Originator Individual Borrower;
(g) shall identify hold title to its assets in its own name and act solely in its own name;
(h) shall make investments in the name of such Individual Borrower directly by such Individual Borrower or on its behalf by brokers engaged and paid by such Individual Borrower or its agents;
(i) except as expressly required by Lender in connection with the loan secured by this instrument and in writing, shall not guarantee or otherwise agree to be liable for (whether conditionally or unconditionally), pledge or assume or hold itself out or permit itself to be held out as having guaranteed, pledged or assumed any liabilities or obligations of any partner (whether limited or general), member, shareholder or any Affiliate of such Individual Borrower, as applicable, or any other party, nor shall it make any loan, except as expressly permitted in the Loan Documents;
(j) is, and will use commercially reasonable efforts to remain, solvent;
(k) shall separately identify and maintain its assets. Each Individual Borrower's assets shall at all times be held by or on behalf of such Individual Borrower and if held on behalf of such Individual Borrower by another entity, shall at all times be kept identifiable (in accordance with customary usages) as assets owned by such Individual Borrower. This restriction requires, among other things, that (i) such Individual Borrower funds shall be deposited or invested in Individual Borrower's name, (ii) such Individual Borrower funds shall not be commingled with the funds of any Affiliate of same or any other person or entity, (iii) such Individual Borrower shall maintain all accounts in its own name and with its own tax identification number, separate from those of any Affiliate of same or any other person or entity, and (iv) such Individual Borrower funds shall be used only for the business of such Individual Borrower;
(l) shall maintain its assets in such a separate and distinct entity manner that it is not costly or difficult to segregate, ascertain or identify its individual assets from the Buyerthose of any Affiliate of same or other person or entity;
(m) shall not do any act which would make it impossible to carry on the ordinary business of such Originator shall correct any known misunderstanding respecting its separate identity from the BuyerIndividual Borrower;
(n) such Originator shall not enter intoinvest any of such Individual Borrower's funds in securities issued by, nor shall such Individual Borrower acquire the indebtedness or be a party toobligation of, any transaction with the Buyer, except in the ordinary course Affiliate of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third partysame;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement.
Appears in 1 contract
Separateness Covenants. Each Originator hereby acknowledges that this Agreement The Issuer shall respect and appropriately document the separate and independent nature of its activities, as compared with those of any other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. ThereforePerson, from and after the date hereof, each Originator shall take all reasonable steps necessary to continue its identity as a separate legal entity, and make it apparent to third Persons that the Buyer Issuer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of foregoing, and notwithstanding anything to the foregoing and contrary contained in addition to and consistent with this Indenture, the other covenants set forth hereinIssuer (i) shall (A) maintain its books, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate records and books of account financial statements separate from the Buyer books, records and otherwise will observe corporate formalities and have a separate area from the Buyer for its business financial statements of any other entity (which except that such financial statements may be located at the same address as the Buyer, and, consolidated to the extent that it and the Buyer have offices in the same location, there shall be consolidation is permitted under GAAP or sound accounting principles or as a fair and appropriate allocation matter of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyerapplicable law; provided, that (i) appropriate notation shall be made on such financial statements to indicate the Buyerseparateness of the Issuer from such Affiliate and to indicate that the Issuer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets credit are not available to satisfy the debts and other obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer Affiliate or any other Person and (ii) such Originatorassets shall also be listed on the Issuer’s assetsown separate balance sheet), (B) maintain separate bank accounts and records relating theretono funds of the Issuer shall be commingled with funds of any other entity, have not beenexcept as may be permitted by the Transaction Documents, are not(C) keep in full effect its existence, rights, privileges, licenses and franchises as a limited liability company under the laws of Delaware, (D) cause its officers to act independently and in its interests, (E) cause its managing member to duly authorize all of its limited liability company actions and (F) observe all company procedures required by its organizational documents and applicable laws; and (ii) shall not be(A) dissolve or liquidate in whole or in part, commingled with those (B) other than pursuant to a Permitted Ownership Arrangement, own any subsidiary or lend or advance any moneys to, or make an investment in, any Person without the consent of the Buyer;
Trustee (eacting at the direction of the Control Party), (C) such Originator shall not act except as provided in the Transaction Documents, incur any debt in connection with or make any capital expenditures, (D) make any loan or advance of credit to, or guarantee (directly or indirectly or by an agent instrument having the effect of assuring another’s payment or performance on any obligation or its capability of doing so, or otherwise), endorse or otherwise become contingently liable (directly or indirectly) for the Buyer obligations of, or own or purchase any stock, obligations or securities of or any other interest in, or make any capital contribution to, any other Person, (except E) merge or consolidate with any other Person, (F) engage in any other action that detracts from whether the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any separate legal identity of the business of the Buyer in its own name Issuer will be respected, including (except in the capacity of Servicer 1) holding itself out as or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer permitting itself to be held out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated as being liable for the debts of the Buyer any other Person or hold out (2) acting other than in its credit as being available to satisfy the obligations name and through its duly authorized officers or agents, (G) create, incur, assume, or in any manner become liable in respect of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (any indebtedness other than the Intercompany Loan Agreement and the Intercompany Loans);
(k) such Originator shall allocate fairly and reasonably overhead or other Notes, expenses that are properly shared associated with the BuyerClosing Date, including, without limitation, shared office space;
(l) such Originator shall identify trade payables and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except expense accruals incurred in the ordinary course of business which are incidental to its business permitted activities, and as provided in or under the Transaction Documents, (H) sponsor or contribute, or contract to or incur any other obligation to contribute to any Plans, or (I) enter into or become party to any agreements or instruments other than the Transaction Documents or any documents or instruments executed pursuant thereto and in connection therewith. The Issuer will not hold itself out, or permit itself to be held out, as having agreed to pay or as being liable for the debts of any Transferor or the Originator and the Issuer will not engage in any transactions with any Transferor or the Originator, except as expressly contemplated by the Transaction Documents and on terms which an arm’s‑length basis. The Issuer will not hold any Transferor and/or the Originator out to third parties as other than an entity with assets and liabilities distinct from the Issuer. The Issuer will not act in any other manner that could foreseeably mislead others with respect to the Issuer’s separate identity. Failure of the Issuer, the Transferor or the Originator on behalf of the Issuer to comply with any of the foregoing covenants shall not affect the status of the Issuer as a separate legal entity or the limited liability of the Transferor and the Originator. So long as any Notes remain Outstanding or any other amounts are intrinsically fair owed under the Transaction Documents, the Issuer shall not amend its organizational documents without the prior written consent of the Control Party and prior written notice to the Rating Agency and the Trustee. The Issuer shall not less favorable make any investment in any Person through the direct or indirect holding of securities or otherwise other than in Eligible Investments or pursuant to a Permitted Ownership Arrangement. The Issuer shall not declare or pay any dividends, except out of funds released to it than would be obtained in a comparable arm’s-length transaction under Section 13.03. The Issuer will not have any of its indebtedness guaranteed by the Originator or any Affiliate thereof. The Issuer will cause any financial statements consolidated with an unrelated third party;
(o) such Originator shall not pay the salaries those of the BuyerOriginator or the Transferor to state that the Issuer is a separate entity with its own separate creditors who, in any liquidation of the Issuer, will be entitled to be satisfied out of the Issuer’s employeesassets prior to any value in the Issuer becoming available to the Issuer’s equity holders. Without the prior written consent of the Control Party, if any; and
(p) the Issuer will not, nor will it permit or allow others to, amend, modify, terminate or waive any provision of any Contract Assets, except to the extent not already covered in paragraphs (a) through (o) aboveotherwise expressly permissible under the Transaction Documents. Notwithstanding the foregoing, such Originator shall comply and/or act in accordance with all the Servicer may, without the prior written consent of the Control Party, waive any assumption fees, late payment charges, charges for checks returned for insufficient funds, or other separateness covenants set forth fees which may be collected in Section 8.03 the ordinary course of servicing the Contracts. The Issuer shall take such actions as the Trustee (at the direction of the Receivables Financing AgreementControl Party) shall reasonably request to enforce the Issuer’s rights under the Contracts, and, at any time during which a Default shall have occurred and be continuing, shall take such actions as are necessary to enable the Trustee (at the direction of the Control Party) to exercise such rights in the Trustee’s own name. On or before June 15 of each year, so long as any of the Notes are Outstanding, the Issuer shall furnish to the Trustee and each Noteholder, an Officer’s Certificate confirming that the Issuer is in compliance with its obligations under this Section 12.02(i).
Appears in 1 contract
Sources: Indenture (NewStar Financial, Inc.)
Separateness Covenants. Each Originator The Seller hereby acknowledges that this Agreement and the other Transaction Loan Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator Seller and its Affiliates. Therefore, from and after the date hereof, each Originator the Seller shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator the Seller and any other Person, and is not a division of such OriginatorSeller, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator the Seller shall take such actions as shall be required in order that:
(a) such Originator the Seller shall not be involved in the day to day management of the Buyer;
(b) such Originator the Seller shall maintain separate corporate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);; US-DOCS\149440763.13
(c) the financial statements and books and records of such Originator the Seller shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes loans thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by in connection with the Receivables Financing Agreementservicing of the Receivables, (i) such Originator the Seller shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originatorthe Seller’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator Seller shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer)name;
(gf) such Originator except as required by the Loan Documents, the Seller shall not pay any liabilities of the Buyer out of its own funds or assets;
(hg) such Originator shall maintain an arm’s-length relationship with except as required by the Buyer;
(i) such Originator Loan Documents, the Seller shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(jh) such Originator the Seller shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans)Buyer;
(ki) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator Seller shall identify and hold itself out as a separate and distinct entity from the Buyer;
(mj) such Originator the Seller shall correct any known misunderstanding respecting its separate identity from the Buyer;
(nk) such Originator the Seller shall maintain an arm’s-length relationship with the Buyer; shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;; and
(ol) such Originator the Seller shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement.
Appears in 1 contract
Sources: Borrower Purchase and Contribution Agreement (Hawaiian Electric Co Inc)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day-to-day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, share the same officers, employees, independent contractors, consultants or agents, jointly does business with vendors or service providers or otherwise share overhead expenses, there shall be a fair and appropriate allocation of overhead such costs between them, and each shall bear its fair share of such expensescosts);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Purchase Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assetsassets other than certain limited expenses as permitted by the Transaction Documents;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany LoansSubordinated Notes);
(k) to the extent such Originator and the Buyer have offices in the same location, such Originator shall allocate fairly and reasonably appropriately allocate overhead or other expenses that are properly shared with costs between itself, and the Buyer, including, without limitation, shared office spaceand the Buyer shall bear its fair share of such expenses;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Purchase Agreement.
Appears in 1 contract
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such the Originator and its Affiliates. Therefore, from and after the date hereof, each the Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator the Originators and any other PersonPersons, and is not a division of such any Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such each Originator shall take such actions as shall be required in order that:
(a) such the Originator (other than Sabre, solely in accordance with its rights and obligations under the Buyer’s limited liability company agreement) shall not be involved in the day to day management of the Buyer;
(b) such the Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and to the extent the Buyer has offices, have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such the Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such the Originator shall maintain its assets (including, without limitation, including deposit accounts) separately from the assets (including, without limitation, including deposit accounts) of the Buyer and (ii) such the Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such the Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such the Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such the Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such the Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such the Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such the Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans)Buyer;
(k) such the Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, including shared office space, if any;
(l) such the Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such the Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such the Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such the Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such the Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 7.03 of the Receivables Financing Agreement.
Appears in 1 contract
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
: (a) such Originator shall not be involved in the day to day management of the Buyer;
; (b) such Originator shall maintain separate corporate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
; (c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originatorthe Buyer’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
; (e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement.Transaction Documents);
Appears in 1 contract
Sources: Purchase and Sale Agreement (Applied Industrial Technologies Inc)
Separateness Covenants. Each Originator hereby acknowledges that this The Issuer (i) shall not engage in any other business than (A) the acquisition, ownership, selling and pledging of the property acquired by it pursuant to the Purchase and Contribution Agreement, any Assignment Agreement, the Servicing Agreement and this Indenture and causing the issuance of, receiving and selling the Notes issued pursuant to this Indenture, (B) the exercise of any powers permitted to limited liability companies under Delaware law which are incidental to the foregoing or necessary to accomplish the foregoing and are not prohibited by the terms of its certificate of formation, its limited liability company agreement or the other Transaction Documents Documents; (ii) will hold such appropriate meetings of its board of managers or distribute appropriate unanimous consents in lieu of a meeting as are being entered into necessary to authorize all of the Issuer’s actions that are required by law to be authorized by the board of managers, keep minutes of its meetings and otherwise observe all other customary corporate formalities; (iii) will (A) maintain its books and records separate from the books and records of any other entity, (B) maintain separate bank accounts and no funds of the Issuer shall be commingled with funds of any other entity except as otherwise permitted in reliance upon the Buyer’s identity Lockbox Intercreditor Agreement, (C) keep in full effect its existence, rights, privileges, licenses and franchises as a legal entity separate from limited liability company under the laws of its applicable state of organization, and will obtain and preserve its “qualification to do business” as a foreign limited liability company in each jurisdiction in which such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator qualification is or shall take all reasonable steps be necessary to protect the validity and enforceability of this Indenture, (D) cause its managers and officers to act independently and in its interests, (E) cause its board of managers to duly authorize all of its corporate actions and (F) observe all company procedures required by its organizational documents and applicable laws; and (iv) will not (A) dissolve or liquidate in whole or in part, (B) own any subsidiary or lend or advance any moneys to, or make an investment in, any Person, (C) incur any debt in connection with or make any capital expenditures, (D)(1) commence any case, proceeding or other action under any existing or future bankruptcy, insolvency or similar law seeking to have an order for relief entered with respect to it, or seeking reorganization, arrangement, adjustment, wind-up, liquidation, dissolution, composition or other relief with respect to it apparent or its debts, (2) seek appointment of a receiver, trustee, custodian or other similar official for it or any part of its assets, (3) make a general assignment for the benefit of creditors, or (4) take any action in furtherance of, or consenting or acquiescing in, any of the foregoing, (E) make any loan or advance or credit to, or guarantee (directly or indirectly or by an instrument having the effect of assuring another’s payment or performance on any obligation or its capability of doing so, or otherwise), endorse or otherwise become contingently liable (directly or indirectly) for the obligations of, or own or purchase any stock, obligations or securities of or any other interest in, or make any capital contribution to, any other Person other than as specifically provided for in the Transaction Documents, (F) merge or consolidate with any other Person, (G) engage in any other action that bears on whether the separate legal identity of the Issuer will be respected, including (1) holding itself out as or permitting itself to be held out as being liable for the debts of any other Person or (2) acting other than in its name and through its duly authorized officers or agents, (H) create, incur, assume, or in any manner become liable in respect of any indebtedness other than the Notes, expenses associated with the Closing Date, trade payables and expense accruals incurred in the ordinary course of business in an amount less than $12,300 at any one time outstanding and which are incidental to its permitted activities, and as provided in or under the Transaction Documents, (I) sponsor or contribute, or contract to or incur any other obligation to contribute to any Pension Plans, or (J) enter into or become party to any agreements or instruments other than the Transaction Documents or any documents or instruments executed pursuant thereto and in connection therewith. So long as any Notes remain Outstanding or any other amounts are owed under the Transaction Documents, the Issuer shall not amend its organizational documents without the prior written consent of the Control Party and prior written notice to the Rating Agency and the Trustee. The Issuer shall not make any investment in any Person through the direct or indirect holding of securities or otherwise other than in Eligible Investments. The Issuer shall not declare or pay any dividends, except out of funds released to it under Section 13.03. The Issuer will not have any of its indebtedness guaranteed by the Transferor or any Affiliate of the Transferor. Furthermore, the Issuer will not hold itself out, or permit itself to be held out, as having agreed to pay or as being liable for the debts of the Transferor and the Issuer will not engage in any transactions with the Transferor, except as expressly contemplated by the Transaction Documents and on an arm’s-length basis. The Issuer will not hold the Transferor out to third Persons that the Buyer is parties as other than an entity with assets and liabilities distinct from the Issuer. The Issuer will cause any financial statements consolidated with those of such Originator and the Transferor to state that the Issuer is a separate corporate entity with its own separate creditors who, in any liquidation of the Issuer, will be entitled to be satisfied out of the Issuer’s assets prior to any value in the Issuer becoming available to the Issuer’s equity holders. The Issuer will not act in any other Person, and is not a division of such Originator, its Affiliates or any other Personmatter that could foreseeably mislead others with respect to the Issuer’s separate identity. Without limiting the generality prior written consent of the foregoing and Control Party, the Issuer will not, nor will it permit or allow others to, amend, modify, terminate or waive any provision of any Contract Assets, except to the extent otherwise expressly permissible under the Transaction Documents. Notwithstanding the foregoing, the Servicer may, without the prior written consent of the Control Party, waive any assumption fees, late payment charges, charges for checks returned for insufficient funds, or other fees which may be collected in addition to and consistent with the other covenants set forth herein, such Originator ordinary course of servicing the Contracts. The Issuer shall take such actions as shall be required in order that:
the Trustee (a) such Originator shall not be involved in at the day to day management direction of the Buyer;
(bControl Party) such Originator shall maintain separate records and books of account from request to enforce the Buyer and otherwise will observe corporate formalities and have a separate area from Issuer’s rights under the Buyer for its business (which may be located at the same address as the BuyerContracts, and, at any time during which a Default shall have occurred and be continuing, shall take such actions as are necessary to enable the extent that it and Trustee (at the Buyer have offices direction of the Control Party) to exercise such rights in the same locationTrustee’s own name. On or before June 15 of each year, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except so long as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of Notes are Outstanding, the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator Issuer shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) furnish to the extent not already covered Trustee and each Noteholder, an Officer’s Certificate confirming that the Issuer is in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance compliance with all of the other separateness covenants set forth in its obligations under this Section 8.03 of the Receivables Financing Agreement12.02(i).
Appears in 1 contract
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate corporate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originatorthe Buyer’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-ServicerServicer in accordance with the Transaction Documents);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-ServicerServicer in accordance with the Transaction Documents);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany LoansSubordinated Notes);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement.
Appears in 1 contract
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate corporate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Purchase Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originatorthe Buyer’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany LoansSubordinated Notes);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 3 of Exhibit IV to the Receivables Financing Purchase Agreement.
Appears in 1 contract
Separateness Covenants. Each Originator hereby acknowledges that Until the Facility Termination, except as set forth below, each of the Ferguson Parties (as applicable) covenants and agrees as follows:
(a) The Seller will at all times maintain at least one independent director or manager who (i) is not currently and has not been during the five years preceding the date of this Agreement an officer, director or employee of any of the Parent, Ferguson, any other Originator, the Servicer, or any of their respective Affiliates or Subsidiaries (except the Seller) (collectively, the “Other Companies”), (ii) is not a current or former officer or employee of the Seller, (iii) is not a stockholder of any of the Other Companies or any of their respective Affiliates, and (iv) who (A) has prior experience as an independent director for a corporation or manager for a limited liability company whose charter documents required the unanimous consent of all independent directors thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (B) has at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. The Seller will provide not less than 30 business days’ prior written notice to the Administrative Agent and the Facility Agents in the event of the replacement of the Seller’s independent director or manager;
(b) The Seller will conduct its business in its own name and from an office separate from that of the Other Companies (but which may be located in the same facility as one or more of the Other Companies). The Seller will have stationery and other Transaction Documents are being entered into business forms separate from that of the Other Companies;
(c) The Seller will at all times be adequately capitalized in reliance upon light of its contemplated business;
(d) The Seller will at all times provide for its own operating expenses and liabilities from its own funds except that common overhead expenses may be shared by the BuyerSeller one or more of the Other Companies on a basis reasonably related to use;
(e) The Seller will maintain its assets and transactions separately from those of the Other Companies and reflect such assets and transactions in financial statements separate and distinct from those of the Other Companies and evidence such assets and transactions by appropriate entries in books and records separate and distinct from those of the Other Companies. The Seller will hold itself out to the public under the Seller’s identity own name as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and the Other Companies. The Seller will not hold itself out as having agreed to pay, or as being liable, primarily or secondarily, for, any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality obligations of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer)Other Companies;
(f) The Seller will hold at least one annual duly noticed meeting of its board of directors, make and retain minutes of such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or meetings and otherwise observe all limited liability company formalities as a Sub-Servicer)distinct entity;
(g) such Originator shall not pay The Seller will prepare its financial statements separately from those of any liabilities of the Buyer out Other Companies and will insure that any consolidated financial statements of any Other Company that are filed with the SEC or any other Official Body or are furnished to any creditors of any Other Company will include notes clearly stating that the Seller is a separate corporate entity and that its own funds or assetsassets are available first and foremost to satisfy the claims of the creditors of the Seller;
(h) such Originator shall maintain an arm’s-length relationship with The Seller will not direct or participate in the Buyermanagement of any of the Other Companies’ operations;
(i) such Originator shall The Seller will not assume or guarantee maintain any joint account with any Other Company or become obligated for the debts liable as a guarantor or otherwise with respect to, or grant a security interest in any of the Buyer its assets to secure, any debt or hold out its credit as being available to satisfy the obligations contractual obligation of the Buyerany Other Company;
(j) such Originator shall The Seller will not acquire obligations engage in any transaction with, or make loans, advances or otherwise extend credit to, any of the Buyer (other than Other Companies except as expressly contemplated by the Intercompany Loan Agreement and the Intercompany Loans)Transaction Documents;
(k) The Seller will maintain its Limited Liability Company Agreement in conformity with this Agreement such Originator shall allocate fairly and reasonably overhead that it does not amend, restate, supplement or other expenses otherwise modify its Limited Liability Company Agreement in any respect that are properly shared would impair its ability to comply with the Buyer, including, without limitation, shared office spaceterms or provisions of any of the Transaction Documents;
(l) such Originator shall identify and hold itself out Such Ferguson Party (other than the Seller) will take all actions necessary to maintain the Seller as a separate separate, limited purpose subsidiary of Ferguson pursuant to, and distinct entity from in accordance with the Buyer;terms of, the Seller’s Limited Liability Company Agreement; and
(m) Such Ferguson Party (other than the Seller) will take such Originator shall correct any known misunderstanding respecting other actions as are necessary on its separate identity from part to ensure that the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business facts and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants assumptions set forth in Section 8.03 of the Receivables Financing Agreementopinions issued by Mayer Brown LLP, as counsel for Seller, in connection with the Facility on the Original Closing Date and, with respect to S.G. Torrice, LLC, October 29, 2024 and relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Ferguson Enterprises Inc. /DE/)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate corporate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, subject to clause (k) below, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an the Parent or other Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of the Parent or such other Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originatorthe Buyer’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-ServicerServicer in accordance with the Transaction Documents);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-ServicerServicer in accordance with the Transaction Documents);
(g) other than with respect to the initial organizational expenses, such Originator shall not pay any liabilities of the Buyer out of its own funds or assets, except in its capacity as Servicer or Sub-Servicer in accordance with the Transaction Documents;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany LoansSubordinated Notes);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space. Such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on the basis reasonably related to the actual use or the value of services rendered;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement.
Appears in 1 contract
Separateness Covenants. Each Originator hereby acknowledges that this The Issuer (i) shall not engage in any other business than (A) the acquisition, ownership, selling and pledging of the property acquired by it pursuant to the Purchase and Contribution Agreement, any Assignment Agreement, the Servicing Agreement and this Indenture and causing the issuance of, receiving and selling the Notes issued pursuant to this Indenture, (B) the exercise of any powers permitted to limited liability companies under Delaware law which are incidental to the foregoing or necessary to accomplish the foregoing and are not prohibited by the terms of its certificate of formation, its limited liability company agreement or the other Transaction Documents Documents; (ii) will hold such appropriate meetings of its board of managers or distribute appropriate unanimous consents in lieu of a meeting as are being entered into necessary to authorize all of the Issuer’s actions that are required by law to be authorized by the board of managers, keep minutes of its meetings and otherwise observe all other customary corporate formalities; (iii) will (A) maintain its books and records separate from the books and records of any other entity, (B) maintain separate bank accounts and no funds of the Issuer shall be commingled with funds of any other entity except as otherwise permitted in reliance upon the Buyer’s identity Lockbox Intercreditor Agreement, (C) keep in full effect its existence, rights, privileges, licenses and franchises as a limited liability company under the laws of its applicable state of organization, and will obtain and preserve its “qualification to do business” as a foreign limited liability company in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Indenture, (D) cause its managers and officers to act independently and in its interests, (E) cause its board of managers to duly authorize all of its corporate actions and (F) observe all company procedures required by its organizational documents and applicable laws; and (iv) will not (A) dissolve or liquidate in whole or in part, (B) own any subsidiary or lend or advance any moneys to, or make an investment in, any Person, (C) incur any debt in connection with or make any capital expenditures, (D)(1) commence any case, proceeding or other action under any existing or future bankruptcy, insolvency or similar law seeking to have an order for relief entered with respect to it, or seeking reorganization, arrangement, adjustment, wind-up, liquidation, dissolution, composition or other relief with respect to it or its debts, (2) seek appointment of a receiver, trustee, custodian or other similar official for it or any part of its assets, (3) make a general assignment for the benefit of creditors, or (4) take any action in furtherance of, or consenting or acquiescing in, any of the foregoing, (E) make any loan or advance or credit to, or guarantee (directly or indirectly or by an instrument having the effect of assuring another’s payment or performance on any obligation or its capability of doing so, or otherwise), endorse or otherwise become contingently liable (directly or indirectly) for the obligations of, or own or purchase any stock, obligations or securities of or any other interest in, or make any capital contribution to, any other Person other than as specifically provided for in the Transaction Documents, (F) merge or consolidate with any other Person, (G) engage in any other action that detracts from whether the separate legal entity separate from such identity of the Issuer will be respected, including (1) holding itself out as or permitting itself to be held out as being liable for the debts of any other Person or (2) acting other than in its name and through its duly authorized officers or agents, (H) create, incur, assume, or in any manner become liable in respect of any indebtedness other than the Notes, expenses associated with the Closing Date, trade payables and expense accruals incurred in the ordinary course of business in an amount less than $12,300 at any one time outstanding and which are incidental to its permitted activities, and as provided in or under the Transaction Documents, (I) sponsor or contribute, or contract to or incur any other obligation to contribute to any Pension Plans, or (J) enter into or become party to any agreements or instruments other than the Transaction Documents or any documents or instruments executed pursuant thereto and in connection therewith. So long as any Notes remain Outstanding or any other amounts are owed under the Transaction Documents, the Issuer shall not amend its organizational documents without the prior written consent of the Control Party and prior written notice to the Trustee. The Issuer shall not make any investment in any Person through the direct or indirect holding of securities or otherwise other than in Eligible Investments. The Issuer shall not declare or pay any dividends, except out of funds released to it under Section 13.03. The Issuer will not have any of its indebtedness guaranteed by the Originator or any Affiliate of the Originator. Furthermore, the Issuer will not hold itself out, or permit itself to be held out, as having agreed to pay or as being liable for the debts of the Originator and its Affiliatesthe Issuer will not engage in any transactions with the Originator, except as expressly contemplated by the Transaction Documents and on an arm’s-length basis. Therefore, from and after The Issuer will not hold the date hereof, each Originator shall take all reasonable steps necessary to make it apparent out to third Persons that the Buyer is parties as other than an entity with assets and liabilities distinct from the Issuer. The Issuer will cause any financial statements consolidated with those of such the Originator and to state that the Issuer is a separate corporate entity with its own separate creditors who, in any liquidation of the Issuer, will be entitled to be satisfied out of the Issuer’s assets prior to any value in the Issuer becoming available to the Issuer’s equity holders. The Issuer will not act in any other Person, and is not a division of such Originator, its Affiliates or any other Personmatter that could foreseeably mislead others with respect to the Issuer’s separate identity. Without limiting the generality prior written consent of the foregoing and Control Party, the Issuer will not, nor will it permit or allow others to, amend, modify, terminate or waive any provision of any Contract Assets, except to the extent otherwise expressly permissible under the Transaction Documents. Notwithstanding the foregoing, the Servicer may, without the prior written consent of the Control Party, waive any assumption fees, late payment charges, charges for checks returned for insufficient funds, or other fees which may be collected in addition to and consistent with the other covenants set forth herein, such Originator ordinary course of servicing the Contracts. The Issuer shall take such actions as shall be required in order that:
the Trustee (a) such Originator shall not be involved in at the day to day management direction of the Buyer;
(bControl Party) such Originator shall maintain separate records and books of account from request to enforce the Buyer and otherwise will observe corporate formalities and have a separate area from Issuer’s rights under the Buyer for its business (which may be located at the same address as the BuyerContracts, and, at any time during which a Default shall have occurred and be continuing, shall take such actions as are necessary to enable the extent that it and Trustee (at the Buyer have offices direction of the Control Party) to exercise such rights in the same locationTrustee’s own name. On or before June 15 of each year, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except so long as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of Notes are Outstanding, the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator Issuer shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) furnish to the extent not already covered Trustee and each Noteholder, an Officer’s Certificate confirming that the Issuer is in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance compliance with all of the other separateness covenants set forth in its obligations under this Section 8.03 of the Receivables Financing Agreement12.02(i).
Appears in 1 contract
Sources: Indenture (Resource America, Inc.)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany LoansSubordinated Notes);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) such Originator will not account for or treat (whether in financial statements or otherwise) the transactions contemplated hereby in any manner other than the sale and/or contribution and absolute assignment of the Receivables and the Related Security by it to the Buyer or in any other respect account for or treat the transactions contemplated hereby in any manner other than as a sale and/or contribution and absolute assignment of the Receivables and the Related Security by it to the Buyer (except to the extent that such transactions are not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act recognized on account of consolidated financial reporting in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing AgreementGAAP).
Appears in 1 contract
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such the Originator and its Affiliates. Therefore, from and after the date hereof, each the Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator the Originators and any other PersonPersons, and is not a division of such any Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such each Originator shall take such actions as shall be required in order that:
(a) such the Originator shall not be involved in the day to day management of the Buyer;
(b) such the Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such the Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such the Originator shall maintain its assets (including, without limitation, including deposit accounts) separately from the assets (including, without limitation, including deposit accounts) of the Buyer and (ii) such the Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such the Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such the Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such the Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such the Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such the Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such the Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans)Buyer;
(k) such the Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, including shared office space;
(l) such the Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such the Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such the Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable favourable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such the Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such the Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 7.03 of the Receivables Financing Agreement.
Appears in 1 contract
Sources: Sale Agreement (Sabre Corp)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day-to-day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement Agreements and the Intercompany Loans);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement.
Appears in 1 contract
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each such Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day-to-day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, provided that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Purchase Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Master Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in its capacity as the capacity of Master Servicer or a Sub-Servicer, as applicable);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loansits Subordinated Note);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space, but such Originator shall not pay the salaries of the Buyer’s employees, if any, or any of the Seller’s other operating expenses;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;; and
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement.
Appears in 1 contract
Sources: Receivables Sale and Contribution Agreement (StarTek, Inc.)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other UK Transaction Documents and the Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its other Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other PersonOriginator, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate corporate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer Cut-Off Date to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originatorthe Buyer’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-ServicerServicer in accordance with the UK Transaction Documents and Transaction Documents);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-ServicerServicer in accordance with the UK Transaction Documents and the Transaction Documents);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany LoansSubordinated Notes);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) except under or as contemplated by the Receivables Financing Agreement or this Agreement, such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement, to the extent applicable to such Originator.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Purchase Agreement, (i) such Originator shall maintain its assets (including, without limitation, including deposit accounts) separately from the assets (including, without limitation, including deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) other than with respect to initial organization expenses, such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) except as contemplated by the Transaction Documents, such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Subordinated Loans);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, including shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 7.03 of the Receivables Financing Purchase Agreement.
Appears in 1 contract
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary specifically required by this Agreement or reasonably required by the Administrative Agent or any Group Agent to continue the Buyer’s identity as a separate legal entity and to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Purchase Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originatorthe Buyer’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany LoansSubordinated Notes);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Purchase Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Computer Sciences Corp)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the BuyerCompany’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer Company is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the BuyerCompany;
(b) such Originator shall maintain separate records and books of account from the Buyer Company and otherwise will observe corporate formalities and have a separate area from the Buyer Company for its business (which may be located at the same address as the BuyerCompany, and, to the extent that it and the Buyer Company have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and Company shall reflect the separate existence of the BuyerCompany; provided, that the BuyerCompany’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the BuyerCompany; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that (i) the BuyerCompany’s assets are not available to satisfy the obligations of such Affiliate, (ii) the Company is a separate legal entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the Company’s assets prior to any assets or value in the Company becoming available to the Company’s equity holders and (iii) the assets of the Company are not available to pay the creditors of the Servicer, First Data, the Performance Guarantor, the Originators or any Affiliate thereof;
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer Company and (ii) such Originatorthe Company’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the BuyerCompany;
(e) such Originator shall not act as an agent for the Buyer Company (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer Company in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) except as provided in Section 9.1(o), such Originator shall not pay any liabilities of the Buyer Company out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the BuyerCompany;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer Company or hold out its credit as being available to satisfy the obligations of the BuyerCompany;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans)Company;
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the BuyerCompany, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the BuyerCompany;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the BuyerCompany;
(n) such Originator shall not enter into, or be a party to, any transaction with the BuyerCompany, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;party (the parties hereto agree that this Agreement satisfies that standard); and
(o) such Originator shall not pay the salaries of the BuyerCompany’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement.
Appears in 1 contract
Sources: Transfer and Contribution Agreement (First Data Corp)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day-to-day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, share the same officers, employees, independent contractors, consultants or agents, jointly does business with vendors or service providers or otherwise share overhead expenses, there shall be a fair and appropriate allocation of overhead such costs between them, and each shall bear its fair share of such expensescosts);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Purchase Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany LoansSubordinated Notes);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space[Reserved];
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Purchase Agreement.
Appears in 1 contract
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Basic Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its other Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate corporate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, Buyer and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer so as to reflect reflect, and shall reflect reflect, the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as unless (but only to the extent) otherwise permitted by the Receivables Financing AgreementRLSA, (i) such Originator shall maintain its assets property (including, without limitation, including deposit accounts) separately from the assets property (including, without limitation, including deposit accounts) of the Buyer and (ii) such Originator’s assetsproperty, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer, to the extent (if ever) hereafter engaged in such capacity in accordance with the Basic Documents);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer, to the extent (if ever) hereafter engaged in such capacity in accordance with the Basic Documents);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany LoansRPSA Subordinated Note of such Originator);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, including shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) except under or as contemplated by the RLSA or this Agreement, such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable favourable to it the Buyer than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, employees (if any); and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing AgreementBuyer’s operating agreement or in the RLSA, in each case to the extent applicable to such Originator.
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement Agreements and the Intercompany Subordinated Loans);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 7.03 of the Receivables Financing Agreement.
Appears in 1 contract
Sources: Sale and Contribution Agreement (Evoqua Water Technologies Corp.)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Basic Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its other Affiliates. Therefore, from and after the date hereofOriginal Closing Date, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other PersonOriginator, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate corporate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, Buyer and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer so as to reflect reflect, and shall reflect reflect, the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as unless (but only to the extent) otherwise permitted by the Receivables Financing AgreementRLSA, (i) such Originator shall maintain its assets property (including, without limitation, including deposit accounts) separately from the assets property (including, without limitation, including deposit accounts) of the Buyer and (ii) such Originator’s assetsproperty, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer, to the extent (if ever) hereafter engaged in such capacity in accordance with the Basic Documents);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer, to the extent (if ever) hereafter engaged in such capacity in accordance with the Basic Documents);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany LoansRPSA Subordinated Note of such Originator);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, including shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) except under or as contemplated by the RLSA or this Agreement, such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it the Buyer than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, employees (if any); and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing AgreementBuyer’s operating agreement or in the RLSA, in each case to the extent applicable to such Originator.
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Purchase Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originatorthe Buyer’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space[reserved];
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 7.03 of the Receivables Financing Purchase Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Ashland Global Holdings Inc)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each such Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator Originators and any other PersonPersons, and is not a division of such any Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such each Originator shall take such actions as shall be required in order that:
(a) such Originator (other than Mativ, solely in accordance with its rights and obligations under the Buyer’s limited liability company agreement) shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Purchase Agreement, (i) such Originator shall maintain its assets (including, without limitation, including deposit accounts) separately from the assets (including, without limitation, including deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans)Buyer;
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, including shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 7.03 of the Receivables Financing Purchase Agreement.
Appears in 1 contract
Sources: Sale and Contribution Agreement (Mativ Holdings, Inc.)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such the Originator and its Affiliates. Therefore, from and after the date hereof, each the Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator the Originators and any other Person, and is not a division of such any Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such each Originator shall take such actions as shall be required in order that:
(a) such the Originator (other than Labcorp, solely in accordance with its rights and obligations under the Buyer’s limited liability company agreement) shall not be involved in the day to day management of the Buyer;
(b) such the Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such the Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Purchase Agreement, (i) such the Originator shall maintain its assets (including, without limitation, including deposit accounts) separately from the assets (including, without limitation, including deposit accounts) of the Buyer (other than the Collection Accounts) and (ii) such the Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such the Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such the Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such the Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such the Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such the Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such the Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans)Buyer;
(k) such the Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, including shared office space;
(l) such the Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such the Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such the Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such the Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such the Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 7.03 of the Receivables Financing Purchase Agreement.
Appears in 1 contract
Sources: Sale and Contribution Agreement (Labcorp Holdings Inc.)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each such Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator Originators and any other PersonPersons, and is not a division of such any Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such each Originator shall take such actions as shall be required in order that:
(a) such Originator (other than KHLP, solely in accordance with its rights obligations under the Buyer’s limited liability company agreement) shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Purchase Agreement, (i) such Originator shall maintain its assets (including, without limitation, including deposit accounts) separately from the assets (including, without limitation, including deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loansany Subordinated Loan(s));
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, including shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 7.03 of the Receivables Financing Purchase Agreement.
Appears in 1 contract
Sources: Sale and Contribution Agreement (Kinetik Holdings Inc.)
Separateness Covenants. Each Originator hereby acknowledges that this Agreement and the other Transaction Loan Documents are being entered into in reliance upon the Borrower’s and the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Borrower and the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator (other than the Contributing Originator, solely in accordance with its rights and obligations under the Borrower’s and the Buyer’s limited liability company agreement) shall not be involved in the day to day management of the Borrower or the Buyer;
(b) such Originator shall maintain separate corporate records and books of account from the Borrower and from the Buyer and in a manner such that it will not be difficult or costly to segregate, ascertain or otherwise will identify the assets and liabilities of such Originator, including any Excluded Receivables and Non-Commodity Related Receivables, and shall otherwise observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Borrower and/or the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Borrower and the Buyer to reflect and shall reflect the separate existence of the Borrower and the Buyer; provided, that the Borrower’s and the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Borrower and the Buyer; provided, however, that any such consolidated financial statement or the notes loans thereto shall make clear that the Borrower’s and the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by in connection with the Receivables Financing Agreementservicing of the Receivables, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Borrower and the Buyer and (ii) such the Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Borrower and/or the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Borrower and/or the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer)name;
(gf) except as required by the Loan Documents, such Originator shall not pay any liabilities of the Borrower and/or the Buyer out of its own funds or assets;
(hg) such Originator shall maintain an arm’s-length relationship with except as required by the Buyer;
(i) Loan Documents, such Originator shall not assume or guarantee or become obligated for the debts of the Borrower and/or the Buyer or hold out its credit as being available to satisfy the obligations of the Borrower and/or the Buyer;
(jh) such Originator shall not acquire obligations of the Buyer (other than Borrower and/or the Intercompany Loan Agreement and the Intercompany Loans);Buyer; US-DOCS\148030570.24
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(li) such Originator shall identify and hold itself out as a separate and distinct entity from the Borrower and from the Buyer;
(mj) such Originator shall correct any known misunderstanding respecting its separate identity from the Borrower and from the Buyer;
(nk) such Originator shall maintain an arm’s-length relationship with the Buyer; shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(ol) from and after the Effective Date, (i) not less than one member of the Buyer’s board of managers (the “Independent Manager”) shall be a natural person who (A) shall not have been at the time of such Person’s appointment or at any time during the preceding five years and shall not be as long as such person is a director or manager of the Buyer (1) a director, officer, employee, partner, shareholder, member, manager or Affiliate of any of the following Persons (collectively, the “Independent Parties”): the Servicer, any of the Originators, the Company or any of their respective Subsidiaries or Affiliates (other than the Borrower or another special purpose entity which is a Subsidiary or Affiliate of the Servicer or the Company), (2) a supplier to any of the Independent Parties, (3) the beneficial owner (at the time of such individual’s appointment as an Independent Manager or at any time thereafter while serving as an Independent Manager) of any of the outstanding membership or other equity interests of the Servicer, the Company or any of their respective Subsidiaries or Affiliates having general voting rights, (4) a Person controlling or under common control with any director, officer, employee, partner, shareholder, member, manager, affiliate or supplier of any of the Independent Parties, or (5) a member of the immediate family of any director, officer, employee, partner, shareholder, member, manager, affiliate or supplier of any of the Independent Parties; (B) has not less than three years’ experience in serving as an independent director or manager for special purpose vehicles engaged in securitization and/or structured financing transactions, (C) is an independent director or manager provided by a nationally recognized company that provides independent directors or managers and also provides other corporate services in the ordinary course of business; and (D) is otherwise reasonably acceptable to the Administrative Agent as evidenced in a writing signed by the Administrative Agent; provided, however, that the same individual may serve as Independent Manager for each of the Company and the ABL Borrower. Under this clause (l), the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of management, policies or activities of a Person, whether through ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “controlled” shall have correlative meanings. Without limiting the generality of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests; and (ii) the operating agreement of the Buyer shall provide that: (A) the Buyer’s board of managers or other governing body shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Buyer, a dissolution or merger of the Buyer, an assignment for the benefit of creditors or a sale of all or substantially all of its assets, in any case unless the Independent Manager shall approve the taking of such action in writing before the taking of such action, and (B) such provision and each other provision requiring an Independent Manager cannot be amended without the prior written consent of the Independent Manager;
(m) the Independent Manager shall not at any time serve as a trustee in bankruptcy for the Buyer, the Borrower, the Servicer, any Originator or any of their respective Affiliates; and
(n) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement.
Appears in 1 contract
Sources: Purchase and Contribution Agreement (Hawaiian Electric Co Inc)
Separateness Covenants. Each Originator hereby acknowledges that this The Issuer (i) shall not engage in any other business than (A) the acquisition, ownership, selling and pledging of the property acquired by it pursuant to the Purchase and Contribution Agreement, the Purchase and Sale Agreements, any Assignment, any Assignment Agreement, the Servicing Agreement and this Indenture and causing the issuance of, receiving and selling the Notes issued pursuant to this Indenture, (B) the exercise of any powers permitted to limited liability companies under Delaware law which are incidental to the foregoing or necessary to accomplish the foregoing and are not prohibited by the terms of its certificate of formation, its limited liability company agreement or the other Transaction Documents Documents; (ii) will hold such appropriate meetings of its board of managers or distribute appropriate unanimous consents in lieu of a meeting as are being entered into necessary to authorize all of the Issuer’s actions that are required by law to be authorized by the board of managers, keep minutes of its meetings and otherwise observe all other customary corporate formalities; (iii) will (A) maintain its books and records separate from the books and records of any other entity, (B) maintain separate bank accounts and no funds of the Issuer shall be commingled with funds of any other entity except as otherwise permitted in reliance upon the Buyer’s identity Lockbox Intercreditor Agreement, (C) keep in full effect its existence, rights, privileges, licenses and franchises as a legal entity separate from limited liability company under the laws of its applicable state of organization, and will obtain and preserve its “qualification to do business” as a foreign limited liability company in each jurisdiction in which such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator qualification is or shall take all reasonable steps be necessary to protect the validity and enforceability of this Indenture, (D) cause its managers and officers to act independently and in its interests, (E) cause its board of managers to duly authorize all of its corporate actions and (F) observe all company procedures required by its organizational documents and applicable laws; and (iv) will not (A) dissolve or liquidate in whole or in part, (B) own any subsidiary or lend or advance any moneys to, or make an investment in, any Person, (C) incur any debt in connection with or make any capital expenditures, (D)(1) commence any case, proceeding or other action under any existing or future bankruptcy, insolvency or similar law seeking to have an order for relief entered with respect to it, or seeking reorganization, arrangement, adjustment, wind-up, liquidation, dissolution, composition or other relief with respect to it apparent or its debts, (2) seek appointment of a receiver, trustee, custodian or other similar official for it or any part of its assets, (3) make a general assignment for the benefit of creditors, or (4) take any action in furtherance of, or consenting or acquiescing in, any of the foregoing, (E) make any loan or advance or credit to, or guarantee (directly or indirectly or by an instrument having the effect of assuring another’s payment or performance on any obligation or its capability of doing so, or otherwise), endorse or otherwise become contingently liable (directly or indirectly) for the obligations of, or own or purchase any stock, obligations or securities of or any other interest in, or make any capital contribution to, any other Person other than as specifically provided for in the Transaction Documents, (F) merge or consolidate with any other Person, (G) engage in any other action that detracts from whether the separate legal identity of the Issuer will be respected, including (1) holding itself out as or permitting itself to be held out as being liable for the debts of any other Person or (2) acting other than in its name and through its duly authorized officers or agents, (H) create, incur, assume, or in any manner become liable in respect of any indebtedness other than the Notes, expenses associated with the Closing Date, trade payables and expense accruals incurred in the ordinary course of business in an amount less than $12,300 at any one time outstanding and which are incidental to its permitted activities, and as provided in or under the Transaction Documents, (I) sponsor or contribute, or contract to or incur any other obligation to contribute to any Pension Plans, or (J) enter into or become party to any agreements or instruments other than the Transaction Documents or any documents or instruments executed pursuant thereto and in connection therewith. So long as any Notes remain Outstanding or any other amounts are owed under the Transaction Documents, the Issuer shall not amend its organizational documents without the prior written consent of the Control Party and prior written notice to the Rating Agency and the Trustee. The Issuer shall not make any investment in any Person through the direct or indirect holding of securities or otherwise other than in Eligible Investments. The Issuer shall not declare or pay any dividends, except out of funds released to it under Section 13.03. The Issuer will not have any of its indebtedness guaranteed by the Transferor or any Affiliate of the Transferor. Furthermore, the Issuer will not hold itself out, or permit itself to be held out, as having agreed to pay or as being liable for the debts of the Transferor and the Issuer will not engage in any transactions with the Transferor, except as expressly contemplated by the Transaction Documents and on an arm’s-length basis. The Issuer will not hold the Transferor out to third Persons that the Buyer is parties as other than an entity with assets and liabilities distinct from the Issuer. The Issuer will cause any financial statements consolidated with those of such Originator and the Transferor to state that the Issuer is a separate corporate entity with its own separate creditors who, in any liquidation of the Issuer, will be entitled to be satisfied out of the Issuer’s assets prior to any value in the Issuer becoming available to the Issuer’s equity holders. The Issuer will not act in any other Person, and is not a division of such Originator, its Affiliates or any other Personmatter that could foreseeably mislead others with respect to the Issuer’s separate identity. Without limiting the generality prior written consent of the foregoing and Control Party, the Issuer will not, nor will it permit or allow others to, amend, modify, terminate or waive any provision of any Contract Assets, except to the extent otherwise expressly permissible under the Transaction Documents. Notwithstanding the foregoing, the Servicer may, without the prior written consent of the Control Party, waive any assumption fees, late payment charges, charges for checks returned for insufficient funds, or other fees which may be collected in addition to and consistent with the other covenants set forth herein, such Originator ordinary course of servicing the Contracts. The Issuer shall take such actions as shall be required in order that:
the Trustee (a) such Originator shall not be involved in at the day to day management direction of the Buyer;
(bControl Party) such Originator shall maintain separate records and books of account from request to enforce the Buyer and otherwise will observe corporate formalities and have a separate area from Issuer’s rights under the Buyer for its business (which may be located at the same address as the BuyerContracts, and, at any time during which a Default shall have occurred and be continuing, shall take such actions as are necessary to enable the extent that it and Trustee (at the Buyer have offices direction of the Control Party) to exercise such rights in the same locationTrustee’s own name. On or before June 15 of each year, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except so long as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of Notes are Outstanding, the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator Issuer shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) furnish to the extent not already covered Trustee and each Noteholder, an Officer’s Certificate confirming that the Issuer is in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance compliance with all of the other separateness covenants set forth in its obligations under this Section 8.03 of the Receivables Financing Agreement12.02(i).
Appears in 1 contract
Separateness Covenants. Each The Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such the Originator and its Affiliates. Therefore, from and after the date hereof, each the Originator shall take all reasonable steps necessary to make it apparent to third Persons that APPARENT TO THIRD PERSONS THAT THE BUYER IS AN ENTITY WITH ASSETS AND LIABILITIES DISTINCT FROM THOSE OF the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Personits Affiliates, and is not a division of such Originator, the Originator or its Affiliates or any other PersonAffiliates. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such the Originator shall take such actions as shall be required in order that:
(a) such the Originator shall not be involved in the day to day management of the Buyer;
(b) such the Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses)formalities;
(c) the financial statements and books and records of such the Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as contemplated hereby or permitted by the Receivables Financing Agreement, (i) such the Originator shall maintain its assets (including, without limitation, including deposit accounts) separately from the assets (including, without limitation, including deposit accounts) of the Buyer and (ii) such Originatorthe Buyer’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such the Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such the Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such other than with respect to initial organizational expenses, the Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such the Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such the Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such the Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans)Buyer;
(k) such the Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such the Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such the Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such the Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(po) to the extent not already covered in paragraphs (a) through (o) above, such the Originator shall comply and/or or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement.
Appears in 1 contract