Separate Entity The Borrower is operated as an entity with assets and liabilities distinct from those of the Originator and any Affiliates thereof (other than the Borrower), and the Borrower hereby acknowledges that the Administrative Agent and the Lenders are entering into the transactions contemplated by this Agreement in reliance upon the Borrower’s identity as a separate legal entity from the Originator and from each such other Affiliate of the Originator.
Separate Entities Seller expressly acknowledges and agrees that, for purposes of this Agreement, any Host Utility, Balancing Authority or other Transmission Provider shall be deemed to be a separate entity and separate contracting party from Buyer even if it is the same legal entity as Buyer or an Affiliate of Buyer, and even if any orders, directives or other communications from such entities are communicated to Seller through Buyer. Without limiting the foregoing, the acts and omissions of any Host Utility, Balancing Authority or other Transmission Provider shall not be deemed to be acts and omissions of Buyer or any of its Affiliates for any purpose arising out of or relating to this Agreement.
Separate Entity Existence The Trust Depositor shall:
(i) Maintain its own deposit account or accounts, separate from those of any Affiliate, with commercial banking institutions. The funds of the Trust Depositor will not be diverted to any other Person or for other than authorized uses of the Trust Depositor.
(ii) Ensure that, to the extent that it shares the same officers or other employees as any of its members or Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(iii) Ensure that, to the extent that it jointly contracts with any of its members or Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that the Trust Depositor contracts or does business with vendors or service providers when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs. All material transactions between Trust Depositor and any of its Affiliates shall be only on an arm’s-length basis.
(iv) To the extent that the Trust Depositor and any of its members or Affiliates have offices in the same location, there shall be a fair and appropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses.
(v) Conduct its affairs strictly in accordance with its By-laws and Articles of Incorporation, and observe all necessary, appropriate and customary corporate formalities, including, but not limited to, holding all regular and special stockholders’ and directors’ meetings appropriate to authorize all entity action, keeping separate and accurate records of such meetings and its actions, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts.
(vi) Take or refrain from taking or engaging in, as applicable, each of the actions or activities specified in the “true sale” and “substantive consolidation” opinions of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP delivered on the Closing Date (or in any related certificate delivered in connection therewith), upon which the conclusions expressed therein are based.
Maintenance of Separate Existence With respect to each Unrestricted Subsidiary and Class II Restricted Subsidiary, cause such Subsidiary to do all things necessary to continue to be readily distinguishable from the Parent, the Borrower and the Class I Restricted Subsidiaries and maintain its existence separate and apart from that of the Parent, the Borrower and the Class I Restricted Subsidiaries including, without limitation:
(a) practicing and adhering to organizational formalities, such as maintaining appropriate books and records;
(b) observing all organizational formalities in connection with all dealings between itself and the Parent, the Borrower and the Class I Restricted Subsidiaries;
(c) observing all procedures required by its organizational documents and the laws of the jurisdiction of its organization;
(d) acting solely in its name and through its duly authorized officers or agents in the conduct of its businesses;
(e) maintaining its deposit and other bank accounts and all of its assets separate from those of any other Person;
(f) maintaining its financial records separate and apart from those of any other Person;
(g) not suggesting in any way, within its financial statements, that its assets are available to pay the claims of creditors of the Parent, the Borrower or any Class I Restricted Subsidiary;
(h) ensuring that the responsible officers of the Unrestricted Subsidiary or Class II Restricted Subsidiary, as the case may be, duly authorized in accordance with its organizational documents, duly authorize all of its actions;
(i) ensuring the receipt of proper authorization, when necessary, in accordance with the terms of its organizational documents for its actions;
(j) not (A) having or incurring any Indebtedness to the Parent, the Borrower or any Class I Restricted Subsidiary (except for any such Indebtedness permitted by Section 7.2(k) or (l)); (B) guaranteeing or otherwise becoming liable for any obligations of the Parent, the Borrower (other than Peso Subfacility Loans and Third-Party Peso Loans, if any) or any Class I Restricted Subsidiary; (C) having obligations guaranteed by the Parent, the Borrower or any Class I Restricted Subsidiary except to the extent of any guarantee permitted by Section 7.8; (D) making any loans or advances to the Parent, the Borrower or any Subsidiary Guarantor except for any such Indebtedness that is (i) permitted by Section 7.2, (ii) unsecured, and (iii) subordinated to the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent; (E) holding itself out as responsible for debts of the Parent, the Borrower or any Class I Restricted Subsidiary or for decisions or actions with respect to the affairs of the Parent, the Borrower or any Class I Restricted Subsidiary; (F) operating or purporting to operate as an integrated, single economic unit with respect to the Parent, the Borrower or any Class I Restricted Subsidiary; (G) seeking to obtain credit or incur any obligation to any third party based upon the assets of the Parent, the Borrower or any Class I Restricted Subsidiary (except to the extent of any guarantee permitted by Section 7.8); and (H) inducing any such third party to reasonably rely on the creditworthiness of the Parent, the Borrower or any Class I Restricted Subsidiary (except to the extent of any guarantee permitted by Section 7.8);
(k) causing the Unrestricted Subsidiaries and the Class II Restricted Subsidiaries to reimburse the Borrower and its other Subsidiaries for the respective shares (determined on a commercially reasonable basis) of the Unrestricted Subsidiaries and Class II Restricted Subsidiaries of the costs of all shared corporate operating services, leases and expenses, including, without limitation, those associated with the services of shared executive officers, employees, consultants and agents, shared computer and other office equipment and software and shared telephone numbers; and otherwise refraining from engaging in any transaction with any of the Parent, the Borrower or any Class I Restricted Subsidiary unless such transaction is consummated (x) on terms and conditions no less favorable to the Unrestricted Subsidiary or Class II Restricted Subsidiary, as the case may be, than transactions consummated on an arms-length basis with unaffiliated Persons and (y) only with the proper approval and authorization in accordance with such Unrestricted Subsidiary’s or Class II Restricted Subsidiary’s organizational documents, as applicable;
(l) refraining from filing or otherwise initiating or supporting the filing of a motion in any bankruptcy or other insolvency proceeding involving the Parent, the Borrower or any Class I Restricted Subsidiary to substantively consolidate the Parent, the Borrower or any Class I Restricted Subsidiary with such Unrestricted Subsidiary or Class II Restricted Subsidiary;
(m) remaining Solvent;
(n) conducting all of its business (whether written or oral) solely in its own name (other than using servicemarks, trademarks, slogans or similar Intellectual Property which are in common with those used by the Borrower and its Restricted Subsidiaries) so as not to mislead others as to the identity of each of the Unrestricted Subsidiary, Class II Restricted Subsidiary, the Parent, the Borrower and any Class I Restricted Subsidiary; and
(o) maintaining a record with respect to any material asset purchased from the Parent, the Borrower or any Class I Restricted Subsidiary, including bills of sale (or any similar instrument of assignment) and, if appropriate, filings under the Uniform Commercial Code.
Separate Existence Each of the Seller and the Servicer hereby acknowledges that the Purchasers, the Purchaser Agents and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from the Servicer, each Originator, Vistra and their respective other Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer shall take all steps specifically required by this Agreement to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of Vistra, the Servicer, each Originator, and any other Person, and is not a division of Vistra, the Servicer, the Originators, its or their respective other 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, each of the Seller and the Servicer shall take such actions as shall be required in order to ensure each of the following until the Final Termination Date:
(a) The Seller will be a limited liability company whose primary activities are restricted in its limited liability company agreement to (i) purchasing or otherwise acquiring from any Originator, owning, holding, granting security interests or selling interests in Pool Assets; (ii) entering into agreements for the selling and servicing of the Receivables Pool; and (iii) conducting such other activities as it deems necessary or appropriate to carry out its primary activities.
(b) The Seller shall not engage in any business or activity, or incur any indebtedness or liability, other than as expressly permitted by the Transaction Documents.
(c) Not less than one independent manager (the “Independent Manager”) shall be an individual who (i) is not, and has not at any time during the five-year period prior to his or her appointment as Independent Manager been, a direct, indirect or beneficial owner, officer, director, employee, affiliate, associate or supplier of Vistra, the Servicer or any of its or their Affiliates (other than his or her service as an independent manager or in a similar capacity of any such Person); and (ii) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. The limited liability company agreement of the Seller shall at all times provide that (i) the Seller’s Manager (as defined in its limited liability company agreement) shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Seller unless the Manager and the Independent Manager shall approve the taking of such action in writing before the taking of such action; and (ii) such provision cannot be amended without the prior written consent of the Independent Manager.
(d) The Independent Manager shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer or any Originator or any of their respective other Affiliates.
(e) Any employee, consultant or agent of the Seller will be compensated from the Seller’s funds for services provided to the Seller. The Seller will not engage any agents other than its attorneys, auditors, other professionals, a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool.
(f) The Seller will contract with the Servicer, to perform for the Seller all operations required on a daily basis to service the Receivables Pool. The Seller will pay the Servicer the Servicing Fee pursuant to the Transaction Documents. Except as otherwise permitted by this Agreement, the Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer (or any other Affiliate thereof) that are not reflected in the Servicing Fee. To the extent, if any, that the Seller (or any Affiliate thereof) shares items of expenses not reflected in the Servicing Fee or the manager’s fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered; provided, that the Servicer may pay all (or any portion of) the expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legal, agency and other fees.
(g) The Seller’s operating expenses will not be paid by Vistra, the Servicer, any Originator or any other Affiliate thereof.
(h) The Seller’s books and records will be maintained separately from those of Vistra, the Servicer or any Originator or any of their respective other Affiliates.
(i) The Seller’s assets shall not be included in the consolidated financial statements of Vistra, the Servicer or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such consolidated financial statements shall contain detailed notes clearly stating that (i) such Affiliates are separate legal entities and the Seller’s assets and credit are not available to satisfy the debts and obligations of such Affiliates or any other Person and (ii) the Seller’s assets shall be listed on the Seller’s own separate balance sheet.
(j) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer or any Originator or any of their respective other Affiliates.
(k) The Seller will strictly observe corporate formalities in its dealings with Vistra, the Servicer or any Originator or any of their respective other Affiliates, and ensure that funds or other assets of the Seller are not commingled with those of Vistra, the Servicer or any Originator or any of their respective other Affiliates except as permitted by this Agreement. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer or any Originator or any of their respective other Affiliates has independent access.
(l) The Seller will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator (and any of their other Affiliates). Any Person that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services it renders or otherwise furnishes to the Seller. Neither the Seller, on the one hand, nor the Servicer or any Originator, on the other, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other. The Seller and the Servicer will immediately correct any known misunderstanding with respect to the foregoing, and they will not operate or purport to operate as an integrated economic unit with respect to each other or in their dealing with any other entity.
(m) None of Vistra, the Servicer or other Originator shall pay the salaries of Seller’s employees, if any.
(n) No Affiliate of the Seller shall advance funds to, or guaranty debts of, the Seller, except as otherwise provided herein or in the other Transaction Documents; provided, that an Affiliate of the Seller may provide funds to the Seller in connection with its capitalization.
(o) The Seller shall not guarantee, and shall not otherwise be liable, with respect to any obligation of any of its Affiliates.
(p) The Seller shall be, at all times, adequately capitalized to engage in the transactions contemplated in its limited liability company agreement.
(q) Each of the Seller and the Servicer will take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued by Sidley Austin LLP, as counsel for the Seller, in connection with this Agreement relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.