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.
Appears in 7 contracts
Sources: Receivables Purchase Agreement (Vistra Corp.), Receivables Purchase Agreement (Vistra Corp.), Receivables Purchase Agreement (Vistra Corp.)
Separate Existence. Each of the Seller and the Servicer hereby acknowledges Take all reasonable steps (including, without limitation, all steps that the Purchasers, Program Agent or any Managing Agent may from time to time reasonably request) to maintain 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 SellerBorrower’s identity as a separate legal entity from each DT Entity and their Affiliates and to make it apparent manifest to third Persons parties that the Seller Borrower is an entity with assets and liabilities distinct from those of Vistra, the Servicer, DT Entities and 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 PersonAffiliate thereof. Without limiting the generality of the foregoing foregoing, the Borrower shall operate in such a manner and be constituted so that it would not be substantively consolidated in addition to and consistent with the other covenants set forth hereinbankruptcy trust estate of any DT Entity or Affiliate thereof, each the separate existence of the Seller Borrower and the Servicer shall take such actions as shall any DT Entity or Affiliate thereof would not be required in order to ensure disregarded, and each of the following until the Final Termination Datestatements will be true and correct at all relevant times:
(ai) The Seller will be the Borrower maintains and shall maintain separate records, books of account and financial statements from those of DTAC and its Affiliates;
(ii) except to the extent permitted pursuant to the Facility Documents and the Master Agency Agreement, the Borrower does not and shall not commingle any of its assets or funds with those of DTAC and its Affiliates;
(iii) the Borrower maintains and shall maintain an office separate from that of any other entity and a separate board of directors with at least two (2) Independent Directors and observes all separate limited liability company whose primary activities formalities, and all decisions with respect to the Borrower’s business and daily operations have been and shall be independently made by the officers of the Borrower pursuant to resolutions of its board of directors;
(iv) other than contributions of capital, payment of dividends and return of capital, no transactions have been or will be entered into between the Borrower and DTAC or between the Borrower and any of Affiliates of DTAC except such transactions as are restricted contemplated by this Agreement and the Facility Documents, or as permitted by the Borrower’s organizational documents, and the Borrower shall not enter into or permit to exist any transaction (including, without limitation, any purchase, lease or exchange of property or the rendering of any service) with any DT Entity or Affiliate thereof which is on terms that are less favorable to the Borrower than those that might be obtained in an arm’s length transaction at the time from Persons who are not Affiliates and which is not evidenced by or pursuant to a written agreement;
(v) except for such administration and collection and functions as the Servicer may perform on behalf of the Borrower, the Borrower acts solely in its limited liability company agreement own name and through its own authorized officers and agents and the Borrower does not and will not act as agent of DTAC or any other Person in any capacity;
(vi) except for any funds received from DTAC or its members as a capital contribution or as otherwise permitted in this Agreement or any other Facility Document, the Borrower shall not accept for its own account funds from DTAC or its Affiliates; and the Borrower shall not allow DTAC or its Affiliates otherwise to supply funds to, or guarantee any obligation of, the Borrower;
(ivii) purchasing the Borrower shall not guarantee, or otherwise acquiring from become liable with respect to, any Originator, owning, holding, granting security interests obligation of DTAC 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.Affiliates;
(bviii) The Seller the Borrower shall at all times hold itself out to the public under the Borrower’s own name as a legal entity separate and distinct from DTAC and its Affiliates, and not hold itself out as a “division” of DTAC or its Affiliates;
(ix) the Borrower shall at all times maintain all of its liabilities and tangible and intangible assets, separate and readily identifiable, from those of DTAC and each and every Affiliate of DTAC or any Affiliate of such Affiliate;
(x) the Borrower is a special purpose company and has not engaged, and does not presently engage and shall not engage engage, in any business activity other than the activities undertaken pursuant to this Agreement and the Facility Documents and activities ancillary or activityincident thereto and transactions permitted pursuant to its organizational documents, or incur any and has no indebtedness or liability, other than as expressly permitted created by, or set forth in, this Agreement or the Facility Documents;
(xi) the Borrower does not have any subsidiaries;
(xii) the Borrower has complied in all material respects with all applicable laws, rules, regulations, and orders with respect to it, its business and properties;
(xiii) all of the issued and outstanding membership interests of the Borrower are owned by DTAC, and all distributions by Borrower to DTAC shall be properly reflected as distributions on the books and records of DTAC;
(xiv) the execution and delivery of this Agreement and the Facility Documents and the consummation of the transactions contemplated hereby and thereby were not made in contemplation of the insolvency of the Borrower or after the commission of any act of insolvency by the Transaction Borrower. The Borrower does not believe, nor does it have any reasonable cause to believe, that it cannot perform its covenants contained in this Agreement and the Facility Documents.
(c) Not less than one independent manager (. The transactions contemplated by this Agreement and the “Independent Manager”) shall be an individual who (i) is notFacility Documents are being consummated by the Borrower in furtherance of its ordinary business purposes, and has not at any time during the five-year period prior with no intent to his hinder, delay 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 defraud any of its present or their Affiliates future creditors and with no view to preferring one creditor over another or to preventing the application of the Borrower’s assets in the manner required by applicable law or regulations.;
(other xv) neither on the date of the transactions contemplated by this Agreement and the Facility Documents nor immediately before or after such transactions, nor as a result of the transactions, will the Borrower:
(A) be insolvent such that the sum of its debts is greater than his all of its respective property, at a fair valuation in the normal course of business operations;
(B) be engaged in or her service about to engage in business or a transaction for which any property remaining with the Borrower will be an unreasonably small capital or the remaining assets of the Borrower will be unreasonably small in relation to its respective business or the transaction; or
(C) have intended to incur, or believed it would incur, debts that would be beyond its respective ability to pay as an independent manager such debts mature or in a similar capacity of any such Person); become due. The Borrower’s assets and (ii) has at least three years of employment experience with one or more entities that provide, cash flow enable it to meet its present obligations 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 business as they become due.
(xvi) both immediately before and after the transactions contemplated by this Agreement and the Facility Documents (y) the present fair salable value of the Seller shall at all times provide Borrower’s assets in the normal course of business operations was and will be in excess of the amount that (i) the Seller’s Manager (will be required to pay its probable liabilities 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 they then exist and the Independent Manager shall approve the taking of such action in writing before the taking of such actionas they become absolute and matured; and (iiz) such provision cannot be amended without the prior written consent sum of the Independent Manager.Borrower’s assets was and will be greater than the sum of its debts, valuing its assets at a fair salable value. This Agreement and the Facility Documents reflect bona fide transactions for legitimate business purposes;
(dxvii) The Independent Manager shall the Borrower (x) is not at in violation of any time serve as laws, ordinances, governmental rules or regulations to which it is subject; (y) has not failed to obtain any licenses, permits, franchises or other governmental authorizations necessary to the ownership of its property or to the conduct of its business; and (z) is not in violation in any material respect of any term of any agreement, charter, bylaw or instrument to which it is a trustee party or by which it may be bound and, in bankruptcy for each case, such violation or failure to obtain would have a material adverse effect on the Sellerbusiness or condition (financial or otherwise) of the Borrower;
(xviii) all tax returns or extensions required to have been filed by the Borrower in any jurisdiction have been filed, Vistraand all taxes, assessments, fees and other governmental charges upon the Servicer Borrower, or any Originator or upon any of their respective other Affiliates.the properties, income or franchises of the Borrower, shown to be due and payable on such returns have been, or will be, paid when due. All such tax returns are true and correct and the Borrower has no knowledge of any proposed additional tax assessment against it in any material amount nor of any basis therefor;
(exix) Any employee, consultant the Borrower has no employees or agent “employee pension benefit plans” as such term is defined in Section 3 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.ERISA; and
(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 ofxx) 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 Borrower 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 take 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 reasonably necessary on its part to ensure that operate its business and perform its obligations under the facts and Facility Documents in a manner consistent with the factual assumptions set forth described in the opinion issued by Sidley Austin LLP, as counsel for legal opinions with respect to nonconsolidation and true sale matters of ▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. delivered to the Seller, in connection with this Agreement relating Program Agent and the Managing Agents pursuant to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all timesSection 3.01 hereof.
Appears in 6 contracts
Sources: Loan and Servicing Agreement (DT Credit Company, LLC), Loan and Servicing Agreement (DT Credit Company, LLC), Loan and Servicing Agreement (DT Credit Company, LLC)
Separate Existence. Each of Maintain 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 SellerBorrower’s identity as a separate legal entity from each of the Seller and all other Subsidiaries of the Seller (each a “Hilton Entity” and collectively, the “Hilton Entities”) and to make it apparent manifest to third Persons parties that the Seller Borrower is an entity with assets and liabilities distinct from those of Vistra, the Servicer, each Originator, Hilton Entities. The Borrower shall operate in such a manner 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 constituted so that each of the following until the Final Termination Datestatements will be true and correct at all relevant times:
(ai) The Seller will be the Borrower maintains and shall maintain separate records, books of account and financial statements from those of the Hilton Entities;
(ii) the Borrower shall at all times maintain all of its liabilities and tangible and intangible assets, separate and readily identifiable, from those of each Hilton Entity and, except to the extent permitted pursuant to the Facility Documents, the Borrower does not and shall not commingle any of its assets or funds with those of any Hilton Entity;
(iii) the Borrower maintains and shall maintain an office separate from that of any other entity and a separate board of directors and observes all separate limited liability company whose primary activities are restricted in formalities, and all decisions with respect to the Borrower’s business and daily operations have been and shall be independently made by the officers of the Borrower pursuant to authority granted by 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 by resolutions of the Receivables Pool; and (iii) conducting such other activities as it deems necessary or appropriate to carry out its primary activities.board of directors;
(biv) The other than contributions of capital, distributions of funds and return of capital, no transactions have been or will be entered into between the Borrower and the Seller shall not engage in or between the Borrower and any business or activityHilton Entity except such transactions as are contemplated by this Agreement and the other Facility Documents, or incur any indebtedness or liability, other than as expressly permitted by the Transaction Documents.Borrower’s organizational documents, and the Borrower shall not enter into or permit to exist any transaction (including any purchase, lease or exchange of property or the rendering of any service) with any Hilton Entity other than those described in Section 5.04(j);
(cv) Not less than one independent manager the Borrower acts solely in its own name and through its own authorized officers and agents and the Borrower does not and will not act as agent of any Hilton Entity or any other Person in any capacity;
(vi) except for any funds received from the “Independent Manager”) shall be an individual who (i) is not, and has not at Seller as a capital contribution or as otherwise permitted in this Agreement or 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 Vistraother Facility Document, the Servicer Borrower shall not accept for its own account funds from any Hilton Entity; and the Borrower shall not allow any Hilton Entity otherwise to supply funds to, or guarantee any of its obligation of, the Borrower;
(vii) the Borrower shall not guarantee, or their Affiliates (other than his or her service as an independent manager or in a similar capacity otherwise become liable with respect to, any obligation of any such Person); and Hilton Entity;
(iiviii) 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 Borrower shall at all times provide that hold itself out to the public under the Borrower’s own name as a legal entity separate and distinct from the Seller and the other Hilton Entities, and not hold itself out as a “division” of the Seller or any other Hilton Entity;
(iix) the Seller’s Manager Borrower is a company with limited purposes (as defined specified in its limited liability company agreement) and has not engaged, and does not presently engage and shall not approveengage, in any activity other than the activities undertaken pursuant to this Agreement and the Facility Documents and activities ancillary or incidental thereto and transactions permitted pursuant to its organizational documents, and has no Indebtedness other than as created by, or take any set forth in, this Agreement or the other action to cause Facility Documents;
(x) all of the filing ofissued and outstanding membership interests of the Borrower are owned by the Seller, a voluntary bankruptcy petition with respect and all distributions by the Borrower to the Seller unless shall be properly reflected as distributions on the Manager books 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 records of the Independent Manager.Seller;
(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 ofxi) 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 this Agreement and the Seller’s assets Facility Documents 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 consummation of the Seller are transactions contemplated hereby and thereby were not commingled with those made in contemplation of Vistrathe insolvency of the Borrower or after the commission of any act of insolvency by the Borrower. The Borrower does not believe, nor does it have any reasonable cause to believe, that it cannot perform its covenants contained in this Agreement and the Servicer or any Originator or any of their respective other Affiliates except as permitted Facility Documents to which it is a party. The transactions contemplated by this Agreement. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, Agreement and 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 Facility Documents are being consummated 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 Borrower in furtherance of the other or the decisions or actions respecting the daily its ordinary 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 liablepurposes, with respect no intent to any obligation of hinder, delay or defraud any of its Affiliates.present or future creditors and with no view to preferring one creditor over another or to preventing the application of the Borrower’s assets in the manner required by applicable law or regulations; and
(pxii) The Seller shall be, at all times, adequately capitalized to engage in both immediately before and after the transactions contemplated in its limited liability company agreement.
by this Agreement and the other Facility Documents (qy) Each the present fair salable value of the Seller Borrower’s assets in the normal course of its business operations was or will be in excess of the amount that will be required to pay its probable liabilities as they then exist and as they become absolute and matured; and (z) the sum of the Borrower’s assets was and will be greater than the sum of its debts, valuing its assets at a fair salable value. This Agreement 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 Facility Documents reflect bona fide transactions 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.legitimate business purposes;
Appears in 5 contracts
Sources: Receivables Loan Agreement and Sale and Contribution Agreement (Hilton Grand Vacations Inc.), Receivables Loan Agreement and Sale and Contribution Agreement (Hilton Grand Vacations Inc.), Receivables Loan Agreement (Hilton Grand Vacations Inc.)
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 ACI and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer ACI shall take all steps specifically required by this Agreement or reasonably required by the Administrator, any Purchaser Agent or any Purchaser 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, ACI and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsACI, 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 ACI shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited liability company whose primary activities are restricted in its limited liability company agreement to LLC Agreement to: (i) purchasing or otherwise acquiring from any Originatorthe Transferor, 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 activity except as set forth in this Agreement nor incur any indebtedness or liability, liability other than as expressly permitted by the Transaction Documents.;
(ci) Not less than one independent manager member of the Seller’s board of directors (the “Independent ManagerDirector”) shall be an individual a natural person (A) who (i) is not, and has not been at any time during the five-year period prior to his or her appointment as Independent Manager been, five (5) years preceding such person’s initial appointment: (1) a direct, indirect or beneficial ownerstockholder, equityholder, officer, directordirector (other than the Independent Director), employee, member, manager, attorney, partner, affiliate, associate or supplier of VistraSeller, ACI, Arch Sales, any Originator, the Servicer Transferor or any of their respective Subsidiaries (the “Arch Group”); provided, that indirect stock ownership of any member of the Arch Group by any person through a mutual fund or similar diversified investment pool shall not disqualify such person from being an Independent Director unless such person maintains direct or indirect control of the investment decisions of such mutual fund or similar diversified investment pool, (2) a customer of, supplier to or other person who derives more than 1% of its purchases or their Affiliates revenues from its activities with any member of the Arch Group; (3) a trustee, conservator or receiver for any member of the Arch Group; (4) a person or other than his entity controlling, controlled by or her service under common control with any such equity holder, partner, member, manager, customer, supplier or other person; or (5) a member of the immediate family of any such equityholder, director, officer, employee, member, manager, partner, customer, supplier or other person and (B) (1) who has (x) prior experience as an independent director for a corporation or an independent manager of a limited liability company whose charter documents required the unanimous consent of all independent director or in independent managers thereof before such corporation could consent to the institution of bankruptcy or insolvency proceedings against it or could file a similar capacity of petition seeking relief under any such Person); applicable federal or state law relating to bankruptcy and (iiy) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities and (2) is reasonably acceptable to the Administrator and each Purchaser Agent (such acceptability of any Independent Director appointed after the date hereof must be evidenced in writing signed by the Administrator and each Purchaser Agent). Under this clause (c), 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, by contract or otherwise. (ii) The limited liability company operating agreement of the Seller shall at all times provide that that: (iA) the Seller’s Manager (as defined in its limited liability company agreement) 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 Seller unless the Manager and the Independent Manager Director shall approve the taking of such action in writing before the taking of such action; , and (iiB) such provision and each other provision requiring an Independent Director cannot be amended without the prior written consent of the Independent ManagerDirector.
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, VistraACI, any Originator, the Servicer or any Originator Transferor or any of their respective other Affiliates.;
(e) The Seller shall maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its ability to comply with the terms and provisions of any of the Transaction Documents, including, without limitation, clause (i) of Exhibit V;
(f) The Seller shall conduct its affairs strictly in accordance with its organizational documents and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and board of directors’ meetings appropriate to authorize all limited liability company action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(g) Any employee, consultant or agent of the Seller will be compensated from the Seller’s funds for services provided to the Seller, and to the extent that Seller shares the same officers or other employees as ACI (or any other Affiliate thereof), the salaries and expenses relating 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 such common officers and employees. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(fh) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer ACI (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, it being understood that the Servicer may ACI shall 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.;
(gi) The Seller’s operating expenses will not be paid by VistraACI, the Servicer, Transferor or any Originator or any other Affiliate thereof.;
(hj) The Seller will have its own separate stationery;
(k) The Seller’s books and records will be maintained separately from those of VistraACI and any other Affiliate thereof and in a manner such that it will not be difficult or costly to segregate, ascertain or otherwise identify the Servicer or any Originator or any assets and liabilities of their respective other Affiliates.Seller;
(il) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer ACI or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall contain detailed notes clearly stating to include the Seller will disclose that (i) the Seller’s sole business consists of the purchase or acceptance through capital contributions of the Receivables and Related Rights from the Transferor and the subsequent retransfer of or granting of a security interest in such Affiliates are Receivables and Related Rights to certain purchasers party to this Agreement, (ii) the Seller is a separate legal entities and entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the Seller’s assets prior to any assets or value in the Seller becoming available to the Seller’s equity holders and credit (iii) the assets of the Seller are not available to satisfy the debts and obligations pay creditors of such Affiliates ACI or any other Person and (ii) Affiliates of ACI or the Seller’s assets shall be listed on Originators or the Seller’s own separate balance sheet.Transferor;
(jm) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer ACI or any Originator or any of their respective other Affiliates.Affiliates thereof;
(kn) The Seller will strictly observe corporate formalities in its dealings with Vistra, the Servicer ACI or any Originator or any of their respective other AffiliatesAffiliates thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer ACI or any Originator or any of their respective other Affiliates thereof except as permitted by this AgreementAgreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer ACI or any Originator or any of their respective Affiliate thereof (other Affiliates than ACI in its capacity as the Servicer) has independent access.. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of ACI or any Subsidiaries or other Affiliates thereof. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(lo) The Seller will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator ACI (and any of their other AffiliatesAffiliates thereof). 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, Seller on the one hand, nor the Servicer or any OriginatorACI, on the otherother hand, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other. The Seller and the Servicer ACI will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single 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, have a separate area from ACI for its business (which may be located at all times, adequately capitalized the same address as such entities) and to engage the extent that any other such entity have offices in the transactions contemplated in same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its limited liability company agreement.fair share of such expenses; and
(q) Each To the extent not already covered in paragraphs (a) through (o) above, Seller shall comply and/or act in accordance with the provisions of Section 6.4 of the Seller Sale 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 timesContribution Agreement.
Appears in 5 contracts
Sources: Receivables Purchase Agreement (Core Natural Resources, Inc.), Receivables Purchase Agreement (Arch Resources, Inc.), Receivables Purchase Agreement (Arch Coal Inc)
Separate Existence. Each of (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the Seller public 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 all other Transaction Documents in reliance upon the Seller’s identity Persons 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; (iv) [reserved]; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not a division required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of Vistra, which the Servicer, the Originators, Borrower has established proper reserves on its or their respective other Affiliates or books in accordance with Appropriate Accounting Principles; (vi) not commingle its assets with assets of 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:
; (avii) The Seller will be a limited liability company whose primary activities are restricted conduct its business in its limited liability company agreement own name and strictly comply with all organizational formalities to (i) purchasing or otherwise acquiring from any Originator, owning, holding, granting security interests or selling interests in Pool Assetsmaintain its separate existence; (iiviii) entering into agreements for the selling and servicing of the Receivables Poolmaintain separate financial statements; 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 activityprovided, 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 anyhowever, 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 SellerBorrower’s assets shall not may be included in the a consolidated financial statements statement of Vistra, the Servicer or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements shall contain detailed notes clearly stating to indicate the separateness of the Borrower from such Affiliate and to indicate that (i) such Affiliates are separate legal entities and the SellerBorrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates Affiliate or any other Person and (iiB) the Seller’s such assets shall also be listed on the SellerBorrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet.
); (jix) The Sellerpay its own liabilities only out of its own funds; (x) maintain an arm’s assets will be maintained in a manner that facilitates their identification length relationship with the Equityholder and segregation from those each of Vistra, the Servicer or any Originator or any of their respective its other Affiliates.
; (kxi) The Seller will strictly observe corporate formalities in not hold out its dealings credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with Vistraan Affiliate, the Servicer or any Originator or any of their respective other Affiliatesincluding for shared office space; (xiii) use separate stationery, invoices 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 checks; (xiv) except as expressly 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 pledge its assets as security for the debts obligations of the any other or the decisions or actions respecting the daily business and affairs of the other. The Seller and the Servicer will immediately Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its member(s) or managing member to act pursuant to written consent and keep minutes of meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the foregoingBorrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents; and they will (xxi) it shall not operate divide or purport to operate as an integrated economic unit with respect to each other or in their dealing with permit any other entitydivision of the Borrower.
(mb) None of VistraThe Borrower shall not (i) engage, directly or indirectly, in any business, other than the Servicer actions required or other Originator shall pay permitted to be performed under the salaries of Seller’s employeespreceding clause (a); (ii) fail to be solvent; (iii) release, if any.
(n) No Affiliate of sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Seller shall advance funds to, or guaranty debts of, the Seller, except as otherwise provided herein or in the other Transaction Documents; provided(iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, that enter into any transaction with an Affiliate of the Seller may provide funds Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Seller in connection with its capitalizationCollateral and the related assets and incidental personal property necessary for the ownership or operation of these assets.
(oc) The Seller Borrower shall not guarantee, (and shall not otherwise be liable, with respect permit the Equityholder to) take any action that is materially contrary 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 “Facts and the Servicer will take such other actions as are necessary on its part to ensure that the facts and assumptions set forth Assumptions” section in the opinion issued by Sidley Austin of Dechert LLP, as counsel for dated the Sellerdate hereof, 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 timescertain nonconsolidation matters.
Appears in 4 contracts
Sources: Loan and Servicing Agreement (Owl Rock Capital Corp III), Loan and Servicing Agreement (Owl Rock Capital Corp III), Loan and Servicing Agreement (Owl Rock Capital Corp III)
Separate Existence. Each The Issuer shall:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the Seller state of its formation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the Servicer hereby acknowledges that validity and enforceability of the Purchasers, the Purchaser Agents Transaction Documents to which it is a party and the Administrator are entering into each other instrument or agreement necessary or appropriate to proper administration hereof or thereof and to permit and effectuate the transactions contemplated by this Agreement hereby or thereby;
(ii) Maintain its own separate books and the other Transaction Documents in reliance upon the Seller’s identity as a legal entity records separate from the Servicer, each Originator, Vistra and their respective other Affiliates. Therefore, from and after the date hereof, each those of any Affiliate of the Seller and Issuer;
(iii) At all times hold itself out to the Servicer shall take all steps specifically required by this Agreement to continue the Seller’s identity public as a separate legal and economic entity apart from any Affiliate of the Issuer, and strictly comply with all organizational formalities to make it apparent to third Persons maintain its separate existence;
(iv) Correct any known misunderstanding regarding its separate identity and refrain from engaging in any activity that compromises the Seller is an entity with assets separate identity of the Issuer;
(v) Maintain adequate capital and a sufficient number of employees, if any employees are so needed, in light of its contemplated business purposes, transactions and liabilities 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:pay its debts as such debts become due;
(avi) The Seller will be a Observe all other Delaware limited liability company whose primary activities are restricted in its limited liability company agreement to formalities;
(ivii) purchasing Not acquire any obligations or otherwise acquiring from securities of any Originator, owning, holding, granting security interests or selling interests in Pool Assets; (ii) entering into agreements for the selling and servicing Affiliate of the Receivables Pool; and (iii) conducting such other activities as it deems necessary or appropriate to carry out its primary activities.Issuer;
(bviii) The Seller shall File its own tax returns, if any, as may be required under applicable law, to the extent (1) not engage in part of a consolidated group filing a consolidated return or returns or (2) not treated as a division for tax purposes of another taxpayer, and pay any business or activity, or incur taxes so required to be paid under applicable law;
(ix) Not commingle its assets with assets of any indebtedness or liability, other than Affiliate of the Issuer except as expressly permitted contemplated by the Transaction Documents.;
(cx) Conduct its business in its own name;
(xi) Maintain separate financial statements, prepared in accordance with applicable generally accepted accounting principles, showing its assets and liabilities separate and apart from those of any Affiliate of the Issuer and not have its assets listed on any financial statement of any Affiliate of the Issuer other than as a consequence of the application of consolidation rules in accordance with general accepted accounting principles;
(xii) Pay its own liabilities and expenses only out of its own funds;
(xiii) Maintain an arm’s length relationship with unaffiliated parties, and not enter into any transaction with an Affiliate except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(xiv) Pay the salaries of its own employees, if any, only out of its own funds;
(xv) Not less than one independent manager (hold out its credit or assets as being available to satisfy 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 obligations of any such Person); Affiliate of the Issuer nor pledge its assets for the benefit of any Affiliate of the Issuer nor make any intercompany loans to any Affiliate of the Issuer or accept any intercompany loans from any Affiliate of the Issuer;
(xvi) Clearly identify its offices, if any, as its offices and, to the extent that the Issuer and (ii) has at least three years of employment experience with one or more entities that provide, its Affiliates have offices in the ordinary course same location, allocate fairly and reasonably any overhead expenses that are shared with such Affiliates, including and for services performed by an employee 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 such Affiliates;
(xvii) Ensure that it shall at all times provide that (i) the Seller’s have at least one Independent Manager (as defined in the applicable LLC Agreement) and at least one officer;
(xviii) Use separate stationery, invoices and checks bearing its limited liability company agreementown name;
(xix) shall not approve, or take Not guarantee 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 obligation of such action in writing before the taking of such action; and (ii) such provision cannot be amended without the prior written consent any Affiliate of the Independent Manager.Issuer;
(dxx) The Independent Manager shall not at Not engage, directly or indirectly, in 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 business other than its attorneysthat required or permitted to be performed under the Issuer LLC Agreement, auditors, other professionals, a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool.or this Section 9.07(a);
(fxxi) The Seller will contract with Not incur, create or assume any indebtedness or liabilities other than 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 Notes or as otherwise expressly permitted under the Transaction Documents. Except as otherwise permitted by this Agreement;
(xxii) The Issuer shall pay out of its own funds, without reimbursement, the Seller will not incur costs and expenses relating to any material indirect stamp, documentary, excise, property (whether on real, personal or overhead expenses for items shared with Vistra intangible property) or any similar tax levied on the Issuer or the Servicer (or any other Affiliate thereof) Issuer’s assets that are not reflected expressly stated in this Agreement to be payable by the Servicing Fee. To the extentIssuer (other than federal, state, local and foreign income and franchise taxes, if any, that the Seller (or any Affiliate thereof) shares items of expenses not reflected in the Servicing Fee interest or the manager’s feepenalties with respect thereto, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical assessed on the basis Issuer); and Solely for purposes of actual use or the value of services renderedthis Section 9.07(a), 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 when used with respect to an Issuer, the foregoing, and they will not operate or purport term “Affiliate” shall be deemed to operate as an integrated economic unit with respect to exclude each other or in their dealing with any other entityIssuer.
(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.
Appears in 4 contracts
Sources: Master Indenture, Master Indenture (Spirit MTA REIT), Master Indenture (Spirit Realty Capital, Inc.)
Separate Existence. Each of the Seller and the Servicer hereby acknowledges that the Purchasers, the Purchaser Agents Purchasers 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 Originators 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 or reasonably required by the Administrator or any Purchaser Agent 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, any Originator and any other Person, and is not a division of Vistra▇▇▇▇▇, the Servicer, the Originators, its or their respective other Affiliates any Originator 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 Datethat:
(a) The Seller will be a limited liability company whose primary activities are restricted in its limited liability company operating agreement to to: (i) purchasing or otherwise acquiring from any Originatorthe Originators, 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 liabilityliability (including, without limitation, any assumption or guaranty of any obligation of ▇▇▇▇▇, any Originator or any Affiliate thereof), other than as expressly permitted by the Transaction Documents.;
(c) Not At all times have a Board of Managers and not less than one independent manager (the “Independent Manager”) member of Seller’s Board of Managers shall be an individual who (iA) is not, and has not at any time during the five-year period (1) prior to his experience as an Independent Director or her appointment as Independent Manager been, for a direct, indirect corporation or beneficial owner, officer, director, employee, affiliate, associate limited liability company whose charter documents required the unanimous consent of all Independent Directors or supplier Independent Managers thereof before such corporation or limited liability company could consent to the institution of Vistra, the Servicer bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any of its applicable federal or their Affiliates (other than his or her service as an independent manager or in a similar capacity of any such Person); state law relating to bankruptcy and (ii2) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. The , (B) is reasonably acceptable to the Administrator as evidenced in a writing executed by the Administrator (it being understood and agreed that any equity owner, manager or employee of Global Securitization Services, LLC or Lord Securities Corporation is hereby consented to by the Administrator), (C) is not, and has not been for a period of five years prior to his or her appointment as an Independent Manager of the Seller: (1) a stockholder (whether direct, indirect or beneficial), customer, advisor or supplier of ▇▇▇▇▇ or any of its respective Affiliates, (2) a director, officer, employee, partner, attorney or consultant of ▇▇▇▇▇ or any of its Affiliates (▇▇▇▇▇ and its Affiliates other than the Seller being hereinafter referred to as the “Parent Group”), (3) a person related to any person referred to in clauses (1) or (2) above, (4) a person or other entity controlling or under common control with any such stockholder, partner, customer, supplier, employee, officer or director or (5) a trustee, conservator or receiver for any member of the Parent Group and (D) shall not at any time serve as a trustee in bankruptcy for the Seller, ▇▇▇▇▇ or any Affiliate thereof (such an individual meeting the requirements set forth above, the “Independent Manager”) and causing its limited liability company agreement of the Seller shall at all times to provide that (iw) at least one member of the Seller’s Board of Managers shall be an Independent Manager, (x) the Seller’s Manager (as defined in its limited liability company agreement) Board of Managers shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Seller unless a unanimous vote of the Manager and Seller’s Board of Managers (which vote shall include the affirmative vote of all Independent Manager Managers) shall approve the taking of such action in writing before prior to the taking of such action; , (y) the Seller’s Board of Managers shall not vote on any matter requiring the vote of its Independent Managers under its certificate of incorporation unless and until at least one Independent Manager is then serving on the Seller’s Board of Managers and (iiz) such the provisions requiring an Independent Manager and the provision described in clauses (x) and (y) of this paragraph (c) cannot be amended without the prior written consent of the Independent Manager.
(d) The each Independent Manager shall not at any time serve (it being understood that, as a trustee used in bankruptcy for this paragraph (c), “control” means the Seller, Vistra, the Servicer possession directly or any Originator or any of their respective other Affiliates.
(e) Any employee, consultant or agent indirectly of the Seller will be compensated from power to direct or cause the Seller’s funds for services provided to the Seller. The Seller will not engage any agents other than its attorneysdirection of management policies or activities of a person or entity whether through ownership of voting securities, 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 Affiliatesotherwise). 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.;
Appears in 4 contracts
Sources: Receivables Purchase Agreement (Kelly Services Inc), Receivables Purchase Agreement (Kelly Services Inc), Receivables Purchase Agreement (Kelly Services Inc)
Separate Existence. Each of the Seller and the Servicer hereby acknowledges Take all reasonable steps (including, without limitation, all steps that the Purchasers, Lender may from time to time reasonably request) to maintain 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 SellerBorrower’s identity as a separate legal entity from each DT Entity and their Affiliates and to make it apparent manifest to third Persons parties that the Seller Borrower is an entity with assets and liabilities distinct from those of Vistra, the Servicer, DT Entities and 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 PersonAffiliate thereof. Without limiting the generality of the foregoing foregoing, the Borrower shall operate in such a manner and be constituted so that it would not be substantively consolidated in addition to and consistent with the other covenants set forth hereinbankruptcy trust estate of any DT Entity or Affiliate thereof, each the separate existence of the Seller Borrower and the Servicer shall take such actions as shall any DT Entity or Affiliate thereof would not be required in order to ensure disregarded, and each of the following until the Final Termination Datestatements will be true and correct at all relevant times:
(ai) The Seller will be the Borrower maintains and shall maintain separate records, books of account and financial statements from those of DTAC and its Affiliates;
(ii) except to the extent permitted pursuant to the Facility Documents and the Master Agency Agreement, the Borrower does not and shall not commingle any of its assets or funds with those of DTAC and its Affiliates;
(iii) the Borrower maintains and shall maintain an office separate from that of any other entity and a separate board of directors with at least two (2) Independent Directors and observes all separate limited liability company whose primary activities formalities, and all decisions with respect to the Borrower’s business and daily operations have been and shall be independently made by the officers of the Borrower pursuant to resolutions of its board of directors;
(iv) other than contributions of capital, payment of dividends and return of capital, no transactions have been or will be entered into between the Borrower and DTAC or between the Borrower and any of Affiliates of DTAC except such transactions as are restricted contemplated by this Agreement and the Facility Documents, or as permitted by the Borrower’s organizational documents, and the Borrower shall not enter into or permit to exist any transaction (including, without limitation, any purchase, lease or exchange of property or the rendering of any service) with any DT Entity or Affiliate thereof which is on terms that are less favorable to the Borrower than those that might be obtained in an arm’s length transaction at the time from Persons who are not Affiliates and which is not evidenced by or pursuant to a written agreement;
(v) except for such administration and collection and functions as the Servicer may perform on behalf of the Borrower, the Borrower acts solely in its limited liability company agreement own name and through its own authorized officers and agents and the Borrower does not and will not act as agent of DTAC or any other Person in any capacity;
(vi) except for any funds received from DTAC or its shareholders as a capital contribution or as otherwise permitted in this Agreement or any other Facility Document, the Borrower shall not accept for its own account funds from DTAC or its Affiliates; and the Borrower shall not allow DTAC or its Affiliates otherwise to supply funds to, or guarantee any obligation of, the Borrower;
(ivii) purchasing the Borrower shall not guarantee, or otherwise acquiring from become liable with respect to, any Originator, owning, holding, granting security interests obligation of DTAC 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.Affiliates;
(bviii) The Seller the Borrower shall at all times hold itself out to the public under the Borrower’s own name as a legal entity separate and distinct from DTAC and its Affiliates, and not hold itself out as a “division” of DTAC or its Affiliates;
(ix) the Borrower shall at all times maintain all of its liabilities and tangible and intangible assets, separate and readily identifiable, from those of DTAC and each and every Affiliate of DTAC or any Affiliate of such Affiliate;
(x) the Borrower is a special purpose company and has not engaged, and does not presently engage and shall not engage engage, in any business activity other than the activities undertaken pursuant to this Agreement and the Facility Documents and activities ancillary or activityincident thereto and transactions permitted pursuant to its organizational documents, or incur any and has no indebtedness or liability, other than as expressly permitted created by, or set forth in, this Agreement or the Facility Documents;
(xi) the Borrower does not have any subsidiaries;
(xii) the Borrower has complied in all material respects with all applicable laws, rules, regulations, and orders with respect to it, its business and properties;
(xiii) all of the issued and outstanding membership interests of the Borrower are owned by DTAC, and all distributions by Borrower to DTAC shall be properly reflected as distributions on the books and records of DTAC;
(xiv) the execution and delivery of this Agreement and the Facility Documents and the consummation of the transactions contemplated hereby and thereby were not made in contemplation of the insolvency of the Borrower or after the commission of any act of insolvency by the Transaction Borrower. The Borrower does not believe, nor does it have any reasonable cause to believe, that it cannot perform its covenants contained in this Agreement and the Facility Documents.
(c) Not less than one independent manager (. The transactions contemplated by this Agreement and the “Independent Manager”) shall be an individual who (i) is notFacility Documents are being consummated by the Borrower in furtherance of its ordinary business purposes, and has not at any time during the five-year period prior with no intent to his hinder, delay 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 defraud any of its present or their Affiliates future creditors and with no view to preferring one creditor over another or to preventing the application of the Borrower’s assets in the manner required by applicable law or regulations;
(other xv) neither on the date of the transactions contemplated by this Agreement and the Facility Documents nor immediately before or after such transactions, nor as a result of the transactions, will the Borrower:
(A) be insolvent such that the sum of its debts is greater than his all of its respective property, at a fair valuation in the normal course of business operations;
(B) be engaged in or her service about to engage in business or a transaction for which any property remaining with the Borrower will be an unreasonably small capital or the remaining assets of the Borrower will be unreasonably small in relation to its respective business or the transaction; or
(C) have intended to incur, or believed it would incur, debts that would be beyond its respective ability to pay as an independent manager such debts mature or in a similar capacity of any such Person); become due. The Borrower’s assets and (ii) has at least three years of employment experience with one or more entities that provide, cash flow enable it to meet its present obligations 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 business as they become due.
(xvi) both immediately before and after the transactions contemplated by this Agreement and the Facility Documents (y) the present fair salable value of the Seller shall at all times provide Borrower’s assets in the normal course of business operations was and will be in excess of the amount that (i) the Seller’s Manager (will be required to pay its probable liabilities 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 they then exist and the Independent Manager shall approve the taking of such action in writing before the taking of such actionas they become absolute and matured; and (iiz) such provision cannot be amended without the prior written consent sum of the Independent Manager.Borrower’s assets was and will be greater than the sum of its debts, valuing its assets at a fair salable value. This Agreement and the Facility Documents reflect bona fide transactions for legitimate business purposes;
(dxvii) The Independent Manager shall the Borrower (x) is not at in violation of any time serve as laws, ordinances, governmental rules or regulations to which it is subject; (y) has not failed to obtain any licenses, permits, franchises or other governmental authorizations necessary to the ownership of its property or to the conduct of its business; and (z) is not in violation in any material respect of any term of any agreement, charter, bylaw or instrument to which it is a trustee party or by which it may be bound and, in bankruptcy for each case, such violation or failure to obtain would have a material adverse effect on the Sellerbusiness or condition (financial or otherwise) of the Borrower;
(xviii) all tax returns or extensions required to have been filed by the Borrower in any jurisdiction have been filed, Vistraand all taxes, assessments, fees and other governmental charges upon the Servicer Borrower, or any Originator or upon any of their respective other Affiliates.the properties, income or franchises of the Borrower, shown to be due and payable on such returns have been, or will be, paid when due. All such tax returns are true and correct and the Borrower has no knowledge of any proposed additional tax assessment against it in any material amount nor of any basis therefor;
(exix) Any employee, consultant the Borrower has no employees or agent “employee pension benefit plans” as such term is defined in Section 3 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.ERISA; and
(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 ofxx) 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 Borrower 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 take 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 reasonably necessary on its part to ensure that operate its business and perform its obligations under the facts and Facility Documents in a manner consistent with the factual assumptions set forth described in the opinion issued by Sidley Austin LLP, as counsel for legal opinions with respect to nonconsolidation and true sale matters of ▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. delivered to the Seller, in connection with this Agreement relating Lender pursuant to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all timesSection 3.01 hereof.
Appears in 4 contracts
Sources: Loan and Servicing Agreement (DT Acceptance Corp), Loan and Servicing Agreement (DT Credit Company, LLC), Loan and Servicing Agreement (DT Credit Company, LLC)
Separate Existence. Each of the Seller Borrower and the each Servicer hereby acknowledges that the Purchasers, the Purchaser Agents Lenders and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Sellereach Borrower’s identity as a legal entity separate from CB, the Servicer, each Originator, Vistra Originators and their respective other Affiliates. Therefore, from and after the date hereof, each of the Seller Borrower and the each Servicer shall take all steps specifically required by this Agreement or reasonably required by the Administrator or any Group Agent to continue the Sellereach Borrower’s identity as a separate legal entity and to make it apparent to third Persons that the Seller such Borrower is an entity with assets and liabilities distinct from those of VistraCB, the Servicer, each any Originator, any Servicer and any other Person, and is not a division of VistraCB, the Servicerany Originator, the Originators, its or their respective other Affiliates any Servicer 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 Borrower and the each Servicer shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller Each Borrower will be a limited liability purpose company whose primary activities are restricted in its limited liability company operating agreement to to: (i) purchasing or otherwise acquiring from any Originator, Originators or CB owning, holding, servicing, granting security interests or selling interests in Pool Assets and the Monetized Receivables and Related Monetized Assets; , (ii) entering into agreements for the selling and servicing of the Receivables Pool; Pool and Monetized Receivables or for borrowing from banks, financial institutions or similar entities, (iii) to purchase, hold and sell common stock or similar equity interests (“Equity Investments”) and to exercise all voting rights and other incidents of ownership with respect to the Equity Investments, (iv) to use proceeds derived from sale or ownership of Pool Assets and Equity Investments as determined by the board of directors of each Borrower and permitted by the Transaction Documents, and (iiiv) conducting such other activities as it deems necessary or appropriate to carry out its primary activities.;
(b) The Seller No Borrower shall not engage in any business or activity, or incur any indebtedness or liabilityliability (including, without limitation, any assumption or guaranty of any obligation of CB, any Originator, the any or any Affiliate thereof), other than as expressly permitted by the Transaction Documents or, with respect to the U.S. Borrower, the Monetization Documents.;
(c) Not less than one independent manager (1) member of any Borrower’s board of directors (the “Independent ManagerDirector”) shall be an individual a natural person (A) who (i) is not, not at the time of initial appointment and has not been at any time during the five-year period prior to his or her appointment as Independent Manager beenfive (5) years preceding such appointment: (1) an equityholder, a direct, indirect or beneficial ownerdirector (other than an independent director), officer, director, employee, affiliatemember (other than a special member or similar capacity), associate manager (other than an independent manager), attorney or supplier partner of VistraCB, the any Borrower, any Servicer or any of their Affiliates; (2) a customer of, supplier to or other person who derives more than 1% of its purchases or revenues from its activities with CB, any Borrower, any Servicer or any of their Affiliates Affiliates; (3) a person or other than his entity controlling, controlled by or her service under common control with any such equity holder, partner, member, manager, customer, supplier or other person; or (4) a member of the immediate family of any such equity holder, director, officer, employee, member, manager, partner, customer, supplier or other person and (B) who has (1) prior experience as an independent director for a corporation or an independent director or independent manager of a limited liability company whose charter documents required the unanimous consent of all independent directors or in independent managers thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a similar capacity of petition seeking relief under any such Person); applicable federal or state law relating to bankruptcy and (ii2) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. Under this clause (c), 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, by contract or otherwise. The limited liability company operating agreement of the Seller each Borrower shall at all times provide that that: (iA) the Sellersuch Borrower’s Manager (as defined in its limited liability company agreement) board of directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Seller such Borrower unless the Manager and the Independent Manager Director shall approve the taking of such action in writing before the taking of such action; , and (iiB) such provision cannot be amended without the prior written consent of the Independent Manager.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Sellerapplicable Borrower, VistraCB, the any Originator, any Servicer or any Originator or any of their respective other Affiliates.;
(e) Each Borrower shall conduct its affairs in accordance with its organizational documents and observe all necessary, appropriate and customary limited liability company formalities, including, but not limited to, holding all regular and special members’ and board of directors’ meetings appropriate to authorize all limited liability company action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(f) Any employee, consultant or agent of the Seller each Borrower will be compensated from the Sellersuch Borrower’s funds for services provided to such Borrower, and to the Sellerextent that such Borrower shares the same officers or other employees as CB, any Servicer or any Originator (or any other Affiliate thereof), the salaries and expenses relating 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 such common officers and employees. The Seller No Borrower will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from each Borrower’s funds;
(fg) The Seller Each Borrower will contract with the Servicer, applicable Servicer to perform for the Seller such Borrower all operations required on a daily basis to service the Receivables Pool. The Seller Each Borrower will pay the applicable Servicer the Servicing Fee pursuant to the Transaction Documentshereto. Except as otherwise permitted by this Agreement, the Seller No Borrower will not incur any material indirect or overhead expenses for items shared with Vistra CB, any Servicer or the Servicer any Originator (or any other Affiliate thereof) that are not reflected in the Servicing Fee. To the extent, if any, that the Seller any Borrower (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; providedit being understood that CB and OnX Enterprise Solutions Ltd., that the Servicer may in their capacity as Servicers, shall 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.;
(gh) The SellerEach Borrower’s operating expenses will not be paid by VistraCB, the Servicer, any Servicer or any Originator or any other Affiliate thereof.;
(hi) The SellerEach Borrower will have its own separate stationery;
(j) Each Borrower’s books and records will be maintained separately from those of VistraCB, each Servicer, each Originator and any other Affiliate thereof and in a manner such that it will not be difficult or costly to segregate, ascertain or otherwise identify the assets and liabilities of such Borrower;
(k) All financial statements of CB, any Servicer or any Originator or any of their respective other Affiliates.
(i) The Seller’s assets shall not be included in the Affiliate thereof that are 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 to include such consolidated financial statements shall contain detailed notes clearly stating Borrower will disclose that (i) such Affiliates are Borrower is a separate legal entities and the Sellerentity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of such Borrower’s assets and credit are not prior to any assets or value in of Borrower becoming available to satisfy the debts and obligations of such Affiliates or any other Person Borrower’s equity holders and (ii) the Seller’s assets shall be listed on the Seller’s own separate balance sheet.of such Borrower are not available to pay creditors of CB, any Servicer or any Originators or any other Affiliates of CB, any Servicer or any Originators;
(jl) The SellerEach Borrower’s assets will be maintained in a manner that facilitates their identification and segregation from those of VistraCB, the Servicer each Servicer, each Originators or any Originator or any of their respective other Affiliates.Affiliates thereof;
(km) The Seller Each Borrower will strictly observe corporate limited liability company formalities in its dealings with VistraCB, the Servicer any Servicer, any Originators or any Originator or any of their respective other AffiliatesAffiliates thereof, and ensure that funds or other assets of the Seller are such Borrower will not be commingled with those of VistraCB, the Servicer any Servicer, any Originators or any Originator or any of their respective other Affiliates thereof except as permitted by this AgreementAgreement in connection with servicing the Pool Receivables. The Seller Each Borrower shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer CB or any Originator or any of Affiliate thereof (other than CB and OnX Enterprise Solutions Ltd., in their respective other Affiliates capacity as the Servicers) has independent access.. No Borrower is named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of CB, any Originators or any Subsidiaries or other Affiliates thereof. Each Borrower will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers such Borrower and such Affiliate;
(ln) The Seller Each Borrower will maintain arm’s-length relationships with each of VistraCB, the Servicer or any Originator Servicer, any Originators (and any of their other AffiliatesAffiliates thereof). Any Person that renders or otherwise furnishes services to the Seller any Borrower will be compensated by the Seller such Borrower at market rates for such services it renders or otherwise furnishes to such Borrower. None of the Seller. Neither the SellerBorrowers, on the one handCB, nor the any Servicer or any Originator, on the other, Originator 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 Each Borrower, CB, each Servicer and the Servicer each Originator will immediately promptly correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single 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 Each Borrower shall not guaranteehave a separate area from CB, each Servicer and each Originator for its business (which may be located at the same address as such entities) and to the extent that any other such entity has offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall not otherwise be liable, with respect to any obligation bear its fair share of any of its Affiliates.such expenses; and
(p) The Seller To the extent not already covered in paragraphs (a) through (o) above, each Borrower shall be, at all times, adequately capitalized to engage comply and/or act in accordance with the transactions contemplated in its limited liability company agreement.
(q) Each provisions of Section 6.4 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 timesapplicable Sale Agreement.
Appears in 3 contracts
Sources: Receivables Financing Agreement (Cincinnati Bell Inc), Receivables Financing Agreement (Cincinnati Bell Inc), Receivables Financing Agreement (Cincinnati Bell Inc)
Separate Existence. Each of the Seller and the Servicer hereby acknowledges Take all reasonable steps (including, without limitation, all steps that the Purchasers, Program Agent or any Managing Agent may from time to time reasonably request) to maintain 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 SellerBorrower’s identity as a separate legal entity from each DT Entity and their Affiliates and to make it apparent manifest to third Persons parties that the Seller Borrower is an entity with assets and liabilities distinct from those of Vistra, the Servicer, DT Entities and 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 PersonAffiliate thereof. Without limiting the generality of the foregoing foregoing, the Borrower shall operate in such a manner and be constituted so that it would not be substantively consolidated in addition to and consistent with the other covenants set forth hereinbankruptcy trust estate of any DT Entity or Affiliate thereof, each the separate existence of the Seller Borrower and the Servicer shall take such actions as shall any DT Entity or Affiliate thereof would not be required in order to ensure disregarded, and each of the following until the Final Termination Datestatements will be true and correct at all relevant times:
(ai) The Seller will be the Borrower maintains and shall maintain separate records, books of account and financial statements from those of DTAC and its Affiliates;
(ii) except to the extent permitted pursuant to the Facility Documents and the Master Agency Agreement, the Borrower does not and shall not commingle any of its assets or funds with those of DTAC and its Affiliates;
(iii) the Borrower maintains and shall maintain an office separate from that of any other entity and a separate board of directors with at least two (2) Independent Directors and observes all separate limited liability company whose primary activities formalities, and all decisions with respect to the Borrower’s business and daily operations have been and shall be independently made by the officers of the Borrower pursuant to resolutions of its board of directors;
(iv) other than contributions of capital, payment of dividends and return of capital, no transactions have been or will be entered into between the Borrower and DTAC or between the Borrower and any of Affiliates of DTAC except such transactions as are restricted contemplated by this Agreement and the Facility Documents, or as permitted by the Borrower’s organizational documents, and the Borrower shall not enter into or permit to exist any transaction (including, without limitation, any purchase, lease or exchange of property or the rendering of any service) with any DT Entity or Affiliate thereof which is on terms that are less favorable to the Borrower than those that might be obtained in an arm’s length transaction at the time from Persons who are not Affiliates and which is not evidenced by or pursuant to a written agreement;
(v) except for such administration and collection and functions as the Servicer may perform on behalf of the Borrower, the Borrower acts solely in its limited liability company agreement own name and through its own authorized officers and agents and the Borrower does not and will not act as agent of DTAC or any other Person in any capacity;
(vi) except for any funds received from DTAC or its members as a capital contribution or as otherwise permitted in this Agreement or any other Facility Document, the Borrower shall not accept for its own account funds from DTAC or its Affiliates; and the Borrower shall not allow DTAC or its Affiliates otherwise to supply funds to, or guarantee any obligation of, the Borrower;
(ivii) purchasing the Borrower shall not guarantee, or otherwise acquiring from become liable with respect to, any Originator, owning, holding, granting security interests obligation of DTAC 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.Affiliates;
(bviii) The Seller the Borrower shall at all times hold itself out to the public under the Borrower’s own name as a legal entity separate and distinct from DTAC and its Affiliates, and not hold itself out as a “division” of DTAC or its Affiliates;
(ix) the Borrower shall at all times maintain all of its liabilities and tangible and intangible assets, separate and readily identifiable, from those of DTAC and each and every Affiliate of DTAC or any Affiliate of such Affiliate;
(x) the Borrower is a special purpose company and has not engaged, and does not presently engage and shall not engage engage, in any business activity other than the activities undertaken pursuant to this Agreement and the Facility Documents and activities ancillary or activityincident thereto and transactions permitted pursuant to its organizational documents, or incur any and has no indebtedness or liability, other than as expressly permitted created by, or set forth in, this Agreement or the Facility Documents;
(xi) the Borrower does not have any subsidiaries;
(xii) the Borrower has complied in all material respects with all applicable laws, rules, regulations, and orders with respect to it, its business and properties;
(xiii) all of the issued and outstanding membership interests of the Borrower are owned by DTAC, and all distributions by Borrower to DTAC shall be properly reflected as distributions on the books and records of DTAC;
(xiv) the execution and delivery of this Agreement and the Facility Documents and the consummation of the transactions contemplated hereby and thereby were not made in contemplation of the insolvency of the Borrower or after the commission of any act of insolvency by the Transaction Borrower. The Borrower does not believe, nor does it have any reasonable cause to believe, that it cannot perform its covenants contained in this Agreement and the Facility Documents.
(c) Not less than one independent manager (. The transactions contemplated by this Agreement and the “Independent Manager”) shall be an individual who (i) is notFacility Documents are being consummated by the Borrower in furtherance of its ordinary business purposes, and has not at any time during the five-year period prior with no intent to his hinder, delay 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 defraud any of its present or their Affiliates (other than his future creditors and with no view to preferring one creditor over another or her service to preventing the application of the Borrower’s assets in the manner required by applicable law or regulations. The consideration received by the Borrower as an independent manager set forth herein is fair consideration having value reasonably equivalent to or in excess of the value of the Pledged Contracts and the performance of the Borrower’s obligations hereunder;
(xv) neither on the date of the transactions contemplated by this Agreement and the Facility Documents nor immediately before or after such transactions, nor as a similar capacity result of the transactions, will the Borrower:
(A) be insolvent such that the sum of its debts is greater than all of its respective property, at a fair valuation in the normal course of its business operations;
(B) be engaged in or about to engage in business or a transaction for which any property remaining with the Borrower will be an unreasonably small capital or the remaining assets of the Borrower will be unreasonably small in relation to its respective business or the transaction; or
(C) have intended to incur, or believed it would incur, debts that would be beyond its respective ability to pay as such Person); debts mature or become due. The Borrower’s assets and (ii) has at least three years of employment experience with one or more entities that provide, cash flow enable it to meet its present obligations 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 business as they become due.
(xvi) both immediately before and after the transactions contemplated by this Agreement and the Facility Documents (y) the present fair salable value of the Seller shall at all times provide Borrower’s assets in the normal course of its business operations was or will be in excess of the amount that (i) the Seller’s Manager (will be required to pay its probable liabilities 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 they then exist and the Independent Manager shall approve the taking of such action in writing before the taking of such actionas they become absolute and matured; and (iiz) such provision cannot be amended without the prior written consent sum of the Independent Manager.Borrower’s assets was and will be greater than the sum of its debts, valuing its assets at a fair salable value. This Agreement and the Facility Documents reflect bona fide transactions for legitimate business purposes;
(dxvii) The Independent Manager shall the Borrower (x) is not at in violation of any time serve as laws, ordinances, governmental rules or regulations to which it is subject; (y) has not failed to obtain any licenses, permits, franchises or other governmental authorizations necessary to the ownership of its property or to the conduct of its business; and (z) is not in violation in any material respect of any term of any agreement, charter, bylaw or instrument to which it is a trustee party or by which it may be bound and, in bankruptcy for each case, such violation or failure to obtain would have a material adverse effect on the Sellerbusiness or condition (financial or otherwise) of the Borrower;
(xviii) all tax returns or extensions required to have been filed by the Borrower in any jurisdiction have been filed, Vistraand all taxes, assessments, fees and other governmental charges upon the Servicer Borrower, or any Originator or upon any of their the respective other Affiliates.properties, income or franchises of the Borrower, shown to be due and payable on such returns have been, or will be, paid when due. All such tax returns are true and correct and the Borrower has no knowledge of any proposed additional tax assessment against it in any material amount nor of any basis therefor;
(exix) Any employee, consultant the Borrower has no employees or agent “employee pension benefit plans” as such term is defined in Section 3 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.ERISA; and
(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 ofxx) 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 Borrower 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 take 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 reasonably necessary on its part to ensure that operate its business and perform its obligations under the facts and Facility Documents in a manner consistent with the factual assumptions set forth described in the opinion issued by Sidley Austin LLP, as counsel for legal opinions with respect to nonconsolidation and true sale matters of DLA Piper US LLP delivered to the Seller, in connection with this Agreement relating Program Agent and the Managing Agents pursuant to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all timesSection 3.01 hereof.
Appears in 3 contracts
Sources: Loan and Servicing Agreement (DT Credit Company, LLC), Loan and Servicing Agreement (DT Credit Company, LLC), Loan and Servicing Agreement (DT Acceptance Corp)
Separate Existence. Each of the Seller and the Servicer KBK hereby acknowledges that the PurchasersPurchaser, the Purchaser Agents Liquidity Banks and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from the Servicer, each Originator, Vistra and their respective other AffiliatesKBK. Therefore, from and after the date hereof, each of the Seller and the Servicer KBK shall take all steps specifically required by this Agreement or by the Purchaser or Administrator to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of Vistra, the Servicer, each Originator, KBK and any other Person, and is not a division of Vistra, the Servicer, the Originators, its or their respective other Affiliates KBK 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 KBK shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited liability company purpose corporation whose primary activities are restricted in its limited liability company agreement certificate of incorporation to (i) purchasing or otherwise acquiring from any OriginatorKBK, owning, holding, granting security interests interests, or selling interests interests, in Pool Assets; (ii) Receivables, 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, liability other than as expressly permitted by the Transaction Documents.;
(c) Not less than one independent manager member of Seller's Board of Directors (the “Independent Manager”"INDEPENDENT DIRECTOR") 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 ownerstockholder, officer, director, employee, affiliate, associate associate, or supplier of Vistra, the Servicer KBK 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 securitiesAffiliates. The limited liability company agreement certificate of the incorporation of Seller shall at all times provide that (i) the Seller’s Manager (as defined in its limited liability company agreement) 's Board of Directors 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 Director shall approve the taking of such action in writing before prior to the taking of such action; action and (ii) such provision cannot be amended without the prior written consent of the Independent Manager.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer KBK or any Originator or any of their respective other Affiliates.Affiliate thereof;
(e) Any employee, consultant or agent of the Seller will be compensated from the Seller’s 's funds for services provided to the Seller. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicer's Fee;
(f) The Seller will contract with the Servicer, 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 Servicer's Fee pursuant to the Transaction Documentshereto. 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 KBK (or any other Affiliate thereof) that which are not reflected in the Servicing Servicer's Fee. To the extent, if any, that the Seller (or any other Affiliate thereof) shares share items of expenses not reflected in the Servicing Fee or the manager’s feeServicer'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, it being understood that the Servicer may KBK shall pay all (or any portion of) the expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including including, without limitation, legal, agency and other fees.;
(g) The Seller’s 's operating expenses will not be paid by Vistra, the Servicer, any Originator KBK or any other Affiliate thereof.;
(h) The Seller will have its own stationery;
(i) Seller’s 's books and records will be maintained separately from those of Vistra, the Servicer or KBK and any Originator or any of their respective other Affiliates.Affiliate thereof;
(ij) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer KBK or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that (iA) such Affiliates all of Seller's assets are separate legal entities and the owned by Seller’s assets and credit are not available to satisfy the debts and obligations of such Affiliates or any other Person , and (iiB) the Seller is a separate entity with creditors who have received security interests in Seller’s assets shall be listed on the Seller’s own separate balance sheet.'s assets;
(jk) The Seller’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer KBK or any Originator or any of their respective other Affiliates.Affiliate thereof;
(kl) The Seller will strictly observe corporate formalities in its dealings with Vistra, the Servicer KBK or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer KBK or any Originator or any of their respective other Affiliates Affiliate thereof except as permitted by this AgreementAgreement in connection with servicing the Receivables Pool. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer KBK or any Originator or any of their respective Affiliate thereof (other Affiliates than KBK in its capacity as Servicer) has independent access.. Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of KBK or any subsidiary or affiliate of KBK. Seller will pay to the appropriate affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers Seller and such affiliate; and
(lm) The Seller will maintain arm’sarm's-length relationships with each of Vistra, the Servicer or any Originator KBK (and any of their other AffiliatesAffiliate thereof). 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, Seller nor the Servicer or any Originator, on the other, KBK 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 KBK will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single 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.
Appears in 3 contracts
Sources: Receivables Purchase Agreement (KBK Capital Corp), Receivables Purchase Agreement (KBK Capital Corp), Receivables Purchase Agreement (KBK Capital Corp)
Separate Existence. Each of (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the Seller public 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 all other Transaction Documents in reliance upon the Seller’s identity Persons 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; (iv) [reserved]; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not a division required to file Taxes under Applicable Law, and pay any Taxes so required to be paid by the Borrower under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of Vistra, which the Servicer, the Originators, Borrower has established proper reserves on its or their respective other Affiliates or books in accordance with Appropriate Accounting Principles; (vi) not commingle its assets with assets of 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:
; (avii) The Seller will be a limited liability company whose primary activities are restricted conduct its business in its limited liability company agreement own name and strictly comply with all organizational formalities to (i) purchasing or otherwise acquiring from any Originator, owning, holding, granting security interests or selling interests in Pool Assetsmaintain its separate existence; (iiviii) entering into agreements for the selling and servicing of the Receivables Poolmaintain separate financial statements; 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 activityprovided, 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 anyhowever, 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 SellerBorrower’s assets shall not may be included in the a consolidated financial statements statement of Vistra, the Servicer or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements shall contain detailed notes clearly stating to indicate the separateness of the Borrower from such Affiliate and to indicate that (i) such Affiliates are separate legal entities and the SellerBorrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates Affiliate or any other Person and (iiB) the Seller’s such assets shall also be listed on the SellerBorrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet.
); (jix) The Sellerpay its own liabilities only out of its own funds; (x) maintain an arm’s assets will be maintained in a manner that facilitates their identification length relationship with the Equityholder and segregation from those each of Vistra, the Servicer or any Originator or any of their respective its other Affiliates.
; (kxi) The Seller will strictly observe corporate formalities in not hold out its dealings credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with Vistraan Affiliate, the Servicer or any Originator or any of their respective other Affiliatesincluding for shared office space; (xiii) use separate stationery, invoices 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 checks; (xiv) except as expressly 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 pledge its assets as security for the debts obligations of the any other or the decisions or actions respecting the daily business and affairs of the other. The Seller and the Servicer will immediately Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its member or members keep minutes of all meetings and actions by written consent and observe in all respects all other limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates except as otherwise permitted under the Transaction Documents; (xix) [reserved]; (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with respect to its organizational documents; and (xxi) not divide or permit any division of 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 entityBorrower under Applicable Law.
(mb) None of VistraThe Borrower shall not (i) engage, directly or indirectly, in any business, other than the Servicer actions required or other Originator shall pay permitted to be performed under the salaries of Seller’s employees, if any.
preceding clause (na) No Affiliate of or otherwise contemplated pursuant to the Seller shall advance funds to, or guaranty debts of, the Seller, except as otherwise provided herein or in the other Transaction Documents; provided(ii) fail to be solvent; (iii) release, that sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, enter into any transaction with an Affiliate of the Seller may provide funds Borrower except on commercially reasonable terms similar to the Seller those available to unaffiliated parties in connection with its capitalization.
an arm’s-length transaction; (ov) The Seller shall not guarantee, and shall not otherwise be liable, with respect to any obligation identify itself as a department or division of any of its Affiliates.
other Person; or (pvi) The Seller shall be, at all times, adequately capitalized to engage in own any asset or property other than the transactions contemplated in its limited liability company agreement.
(q) Each of the Seller Collateral and the Servicer will take such other actions as are related assets and incidental personal property 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 timesownership or operation of these assets.
Appears in 3 contracts
Sources: Loan and Servicing Agreement (Antares Strategic Credit Fund), Loan and Servicing Agreement (Antares Strategic Credit Fund), Loan and Servicing Agreement (Antares Strategic Credit Fund)
Separate Existence. Each of the Seller and the Servicer Peabody 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 Peabody and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer Peabody shall take all steps specifically required by this the Agreement or reasonably required by the Administrator 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, Peabody and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsPeabody, 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 Peabody shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited purpose limited liability company whose primary activities are restricted in its limited liability company agreement to certificate of formation to: (i) purchasing or otherwise acquiring from any Originatorthe Originators or Peabody (or their Affiliates), owning, holding, granting security interests or selling interests in Pool Assets; Assets (or other receivables originated by the Originators or their Affiliates, and certain related assets), (ii) entering into agreements for the selling and servicing of the Receivables Pool; Pool (or other receivables pools originated by the Originators or their Affiliates), and (iii) conducting such other activities as it deems are necessary or appropriate to carry out its primary such activities.;
(b) The Seller shall not engage in any business or activity, or activity except as set forth in this Agreement nor incur any indebtedness or liability, other than as expressly permitted by the Transaction Documents.;
(c) Not less than one independent manager of the Seller’s Directors (the “Independent ManagerDirector”) shall be an individual a natural person who (iA) is not, and has not at any time during for the five-year period prior to his or her appointment as Independent Manager Director has not been, a direct, indirect and during the continuation of his or beneficial owner, officerher service as Independent Director is not: (i) an employee, director, employeestockholder, affiliatemember, associate manager, partner or supplier officer of Vistrathe Seller, the Servicer Peabody or any of its or their respective Affiliates (other than his or her service as an independent manager or in a similar capacity Independent Director of any such Personthe Seller); (ii) a customer or supplier of the Seller, Peabody or any of their respective Affiliates (other than his or her service as an Independent Director of Seller); or (iii) any member of the immediate family of a person described in clause (i) or (ii) above, and (B) has, (i) prior experience as an Independent Director for a corporation or 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 (ii) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. The limited liability company agreement Such Independent Director of the Seller shall at all times have been appointed as such in strict compliance with the Seller’s LLC Agreement. The Seller’s LLC Agreement shall provide that (i) the Seller’s Manager (as defined in its limited liability company agreement) Board of Directors shall not approve, or take any other action to cause the filing of, or join in any filing of, a voluntary bankruptcy petition or insolvency petition, dissolution, liquidation, consolidation, merger, sale of all or substantially all of its assets, assignment for the benefit of creditors, admit in writing its inability to pay its debts generally as they become due, or to engage in any other business or activity with respect to the Seller unless (x) there is at least one Independent Director then serving as a director of the Manager Seller and appointed pursuant to and in strict compliance with the Seller’s LLC Agreement, and (y) all such Independent Manager Directors of the Seller shall approve have approved the taking of such action in writing before prior to the taking of such action; action and (ii) such provision cannot be amended without the prior written consent of the Independent Manager.Director and the Administrator;
(d) Upon the occurrence of any event that causes the Member to cease to be a member of the Seller (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Seller and the admission of the transferee pursuant to Sections 21 and 23 of the LLC Agreement, or (ii) the resignation of the Member and the admission of an additional member of the Seller pursuant to Sections 22 and 23 of the LLC Agreement), each person acting as an Independent Director pursuant to Section 10 of the LLC Agreement shall, without any action of any Person and simultaneously with the Member ceasing to be a member of the Seller, automatically be admitted to the Seller as a Special Member and shall continue the Seller without dissolution. No Special Member may resign from the Seller or transfer its rights as a Special Member unless (i) a successor Special Member has been admitted to the Seller as Special Member by executing a counterpart to the LLC Agreement, and (ii) such successor has also accepted its appointment as Independent Director pursuant to Section 10 of the LLC Agreement; provided, however, the Special Members shall automatically cease to be members of the Seller upon the admission to the Seller of a substitute Member.
(e) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer Peabody or any Originator or any of their respective other Affiliates.Affiliate thereof;
(ef) 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, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(fg) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer Peabody (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, it being understood that the Servicer may Peabody shall 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.;
(gh) The Seller’s operating expenses will not be paid by Vistra, the Servicer, any Originator Seller and not by Peabody or any other Affiliate thereof.;
(hi) All of the Seller’s business correspondence and other communications shall be conducted in the Seller’s own name and on its own separate stationery;
(j) The Seller’s books and records will be maintained separately from those of Vistra, the Servicer or Peabody and any Originator or other Affiliate thereof and any of their respective other Affiliates.Person;
(ik) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer Peabody or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that that: (i) such Affiliates are separate legal entities and the Seller’s assets and credit are not available to satisfy the debts and obligations a special purpose limited liability company exists as a Subsidiary of such Affiliates or any other Person Peabody, and (ii) the Seller’s Originators have sold receivables (or beneficial interests therein) and other related assets shall be listed on to the Seller’s own separate balance sheet.Contributor, which has contributed such receivables (or beneficial interests therein) and other related assets to such special purpose Subsidiary that, in turn, has sold such receivables (or beneficial interests therein) and other related assets to certain financial institutions and other entities;
(jl) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer Peabody or any Originator or Affiliate thereof and any of their respective other Affiliates.Person;
(km) The Seller will strictly observe corporate organizational formalities in its dealings with Vistra, the Servicer Peabody or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer Peabody or any Originator or any of their respective other Affiliates Affiliate thereof except as permitted by this Agreementthe Agreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer Peabody or any Originator Affiliate thereof or any of their respective other Affiliates Person has independent access., and the Seller shall use separate invoices and checks from any other Person. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of Peabody or any Subsidiary or other Affiliate of Peabody (other than the Seller). The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(ln) The Seller will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator Peabody (and any of their other AffiliatesAffiliate thereof). 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, Seller nor the Servicer or any Originator, on the other, Peabody 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 Peabody will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity.;
(mo) None of Vistra, the Servicer or other Originator Peabody shall not 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 does not and will not hold itself responsible for the obligations of any other Person, and shall be, at all times, adequately capitalized to engage in not guarantee or become liable for the transactions contemplated in its limited liability company agreement.debts of any other Person;
(q) Each The Seller will conduct its business in its own name and shall hold itself out as a separate entity from any other Person;
(r) The Seller shall maintain a sufficient number of employees and adequate capital in light of its contemplated business activities;
(s) The Seller shall not acquire the obligations or securities of any of its members;
(t) The Seller will remain a wholly-owned subsidiary of a United States person (within the meaning of Section 7701(a)(30) of the Internal Revenue Code) and not be subject to withholding under Section 1446 of the Internal Revenue Code, and no action will be taken that would cause the Seller and to (i) be treated other than as a “disregarded entity” within the Servicer will take such other actions meaning of U.S. Treasury Regulation § 301.7701-3 for U.S. federal income tax purposes or (ii) become an association taxable as are necessary on a corporation or a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; and
(u) The Seller shall not pledge its part to ensure that the facts and assumptions set forth in the opinion issued by Sidley Austin LLP, as counsel assets for the Sellerbenefit of any other Person or make any loans or advances to any other Person, in connection with this Agreement relating except pursuant to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all timesTransaction Documents.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Peabody Energy Corp), Receivables Purchase Agreement (Peabody Energy Corp)
Separate Existence. Each of the Seller and the Servicer hereby acknowledges ▇▇▇▇▇ will take all reasonable steps (including, without limitation, all steps necessary or that the Purchasers, Administrative Agent may from time to time reasonably request) to maintain 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 SellerTransferor’s identity as a separate legal entity from it and to make it apparent manifest to third Persons parties that the Seller Transferor is an entity with assets and liabilities distinct from those of Vistra, the Servicer, it and each Originator, and any of its other Person, and is not a division of Vistra, the Servicer, the Originators, its or their respective other Affiliates or any other PersonAffiliates. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth hereinforegoing, 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▇▇▇▇▇ shall:
(ai) The Seller will be a limited liability company whose primary activities are restricted cause the board of directors or managers of the Transferor to at all times have at least one (1) member of which is an Independent Director;
(ii) cause the Transferor to conduct its affairs strictly in accordance with its limited liability company agreement and to (i) purchasing or otherwise acquiring from any Originatorobserve all necessary, owning, holding, granting security interests or selling interests in Pool Assets; (ii) entering into agreements for the selling appropriate 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 customary 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 formalities 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 Affiliatesdistinct entity, and ensure that all company actions relating to (A) the selection, maintenance or replacement of any Independent Director, (B) its dissolution or liquidation or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding of it are duly authorized by unanimous vote of its board of directors or managers (including the Independent Directors);
(iii) maintain its books and records separate from those of the Transferor and maintain records of all intercompany debits and credits and transfers of funds made by it on the Transferor’s behalf;
(iv) except as otherwise contemplated under this Agreement or the other Related Documents, prevent the commingling of its funds or other assets of the Seller are not commingled with those of Vistrathe Transferor, the Servicer or any Originator or any of their respective other Affiliates except as permitted by this Agreement. The Seller shall and not maintain joint bank accounts or other depository accounts to which Vistrathe Transferor is an account party, into which the Servicer Transferor makes deposits or any Originator from which the Transferor has the power to make withdrawals except as otherwise contemplated hereunder 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 under 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 Related Documents with respect to the foregoingServicer’s administration of Collections on the Receivables;
(v) not enter into or permit to exist any transaction (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with the Transferor which is on terms that are less favorable to it than those that might be obtained in an arm’s length transaction at the time from Persons who are not Affiliates and which is not evidenced by or pursuant to a written agreement;
(vi) not pay the operating expenses and liabilities of the Transferor;
(vii) conduct its business separate and distinct from the offices of, or any space occupied by, the Transferor and allocate fairly with the Transferor any overhead, if relevant, for shared office space or business facilities or equipment;
(viii) conduct its business and act solely in its own name, through its own officials or representatives where relevant, and they will not operate hold the Transferor out as a “division” or purport to operate as an integrated economic unit “part” of it (although litigation may be filed with respect to each other or the Collections on the Receivables in their dealing with any other entity.the name of the Servicer);
(mix) None have business forms separate from that of Vistra, the Servicer or other Originator shall pay the salaries of Seller’s employees, if any.Transferor;
(nx) No Affiliate cause any financial statements consolidated with those of the Seller shall advance funds toTransferor to state that the Transferor’s business consists of the purchase of Receivables from it and that the Transferor is a separate legal entity with its own separate creditors who, or guaranty debts ofin any liquidation of the Transferor, will be entitled to be satisfied out of the Seller, except as otherwise provided herein or Transferor’s assets prior to any value in the other Transaction Documents; provided, that an Affiliate of the Seller may provide funds Transferor becoming available to the Seller in connection with its capitalization.Transferor’s equity holders; and
(oxi) 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 take 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 reasonably necessary on its part to ensure that operate its business and perform its obligations under this Agreement and the facts and Sale Agreement in a manner consistent with the factual assumptions set forth described in the opinion issued by Sidley Austin LLPlegal opinions with respect to non-consolidation and true sale matters of ▇▇▇▇▇ Lovells US LLP delivered to the Administrative Agent and the Funding Agents pursuant to this Agreement and the Related Documents on the Original Closing Date or the date of the Omnibus First Amendment, as counsel for applicable, to the Seller, in connection with this Agreement relating extent applicable to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all timesit.
Appears in 2 contracts
Sources: Receivables Purchase and Administration Agreement (T-Mobile US, Inc.), Receivables Purchase and Administration Agreement (T-Mobile US, Inc.)
Separate Existence. Each Guarantor shall, and shall cause each of its Subsidiaries to, maintain its existence as a separate corporation, trust or other Person for the sole purpose of (i) in the case of each Pledged SPE, owning, leasing and disposing of the Seller Eligible Aircraft and activities incidental thereto and other Permitted Intermediate Lessee Activities, (ii) in the Servicer hereby acknowledges that case of each Intermediate Lessee, leasing the PurchasersEligible Aircraft and activities incidental thereto and other Permitted Pledged SPE Activities, and (iii) in the Purchaser Agents case of each Guarantor, holding and disposing of the Administrator are assets contemplated to be held hereunder and entering into the Loan Documents and the transactions contemplated by this Agreement thereby and activities incidental thereto and, in the other Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from the Servicercase of Holdco I, each OriginatorPermitted Holdco I Activities. Each Guarantor shall, Vistra and their respective other Affiliates. Therefore, from and after the date hereof, shall cause each of the Seller its Subsidiaries to, maintain certain policies and the Servicer shall take all steps specifically required by this Agreement procedures relating to continue the Seller’s identity as its separateness, including, (x) maintaining its own books and records (other than any Guarantor, Pledged SPE or Intermediate Lessee which is a separate legal entity trust) and to make it apparent to third Persons that the Seller is an entity with maintaining its assets and liabilities distinct in such a manner that it is not difficult to segregate, identify or ascertain such assets and liabilities from those of Vistrathe Company, the Servicerother Guarantors, each Originatorother Pledged SPEs, and other Intermediate Lessees or 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 (y) holding itself out to and consistent with the other covenants set forth herein, each of the Seller creditors and the Servicer shall take such actions public 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 legal entity (other than his or her service as an independent manager or in a similar capacity of any such Person); trust) separate 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 distinct from the Seller’s funds for services provided to the Seller. The Seller will not engage any agents other than its attorneys, auditorsCompany, other professionalsGuarantors, a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool.
(f) The Seller will contract with the ServicerPledged SPEs, 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 Intermediate Lessees or any other Person (except for consolidated tax returns, financial statements and (ii) similar reports). For 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 avoidance of Vistradoubt, the Servicer Company (or a Subsidiary thereof) may act as a “servicer” to any Guarantor or any Originator Subsidiary thereof and in such capacity may perform, 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 cause to be responsible for the debts performed, leasing, administration, sale, aircraft and equipment maintenance and related services on behalf of the other such Guarantor 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 entitysuch Subsidiary.
(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.
Appears in 2 contracts
Sources: Five Year Revolving Credit Agreement (International Lease Finance Corp), Security and Guarantee Agreement (International Lease Finance Corp)
Separate Existence. Each of the Seller and the Servicer UGI hereby acknowledges that the Purchasers, the Purchaser Agents Issuer 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 UGI and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer UGI shall take all steps specifically required by this the Agreement or reasonably required by the Administrator 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, UGI and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsUGI, 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 UGI shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited liability company purpose corporation whose primary activities are restricted in its limited liability company agreement to certificate of incorporation to: (i) purchasing or otherwise acquiring from any Originatorthe Originator (or its Affiliates), owning, holding, granting security interests or selling interests in Pool Assets; Assets (or other receivables originated by the Originator or its Affiliates, and certain related assets), (ii) entering into agreements for the selling and servicing of the Receivables Pool; Pool (or other receivables pools originated by the Originator or its Affiliates), 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 member of the Seller’s Board of Directors (the “Independent ManagerDirector”) 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 ownerstockholder, officer, director, employee, affiliate, associate or supplier of Vistra, the Servicer UGI 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 securitiesAffiliates. The limited liability company agreement certificate of incorporation of the Seller shall at all times provide that that: (i) the Seller’s Manager (as defined in its limited liability company agreement) Board of Directors 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 Director 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.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer UGI or any Originator or any of their respective other Affiliates.Affiliate thereof;
(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, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee;
(f) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer UGI (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, it being understood that the Servicer may UGI shall 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 UGI or any other Affiliate thereof.;
(h) All of the Seller’s business correspondence and other communications shall be conducted in the Seller’s own name and on its own separate stationery;
(i) The Seller’s books and records will be maintained separately from those of Vistra, the Servicer or UGI and any Originator or any of their respective other Affiliates.Affiliate thereof;
(ij) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer UGI or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that that: (i) a special purpose corporation exists as a Subsidiary of UGI, (ii) the Originator has sold receivables and other related assets to such Affiliates are separate legal special purpose Subsidiary that, in turn, has sold undivided interests therein to certain financial institutions and other entities and (iii) that the Sellerspecial purpose Subsidiary’s assets and credit are not available to satisfy the debts and obligations of such Affiliates UGI, the Performance Guarantor or any other Person and (ii) the Seller’s assets shall be listed on the Seller’s own separate balance sheet.Affiliate;
(jk) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer UGI or any Originator or any of their respective other Affiliates.Affiliate thereof;
(kl) The Seller will strictly observe corporate formalities in its dealings with Vistra, the Servicer UGI or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer UGI or any Originator or any of their respective other Affiliates Affiliate thereof except as permitted by this Agreementthe Agreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer UGI or any Originator or any Affiliate thereof (other than UGI in its capacity of their respective other Affiliates Servicer) has independent access.. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy (other than directors and officers liability and credit insurance policies) with respect to any loss relating to the property of UGI or any Subsidiary or other Affiliate of UGI. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(lm) The Seller will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator UGI (and any of their other AffiliatesAffiliate thereof). 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, Seller nor the Servicer or any Originator, on the other, UGI 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 UGI will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity.; and
(mn) None of Vistra, Neither UGI nor the Servicer or other Originator Performance Guarantor shall pay the salaries of Seller’s employees, if any.. Each of the following shall be a “Termination Event”:
(ni) No Affiliate of the Seller shall advance funds toSeller, or guaranty debts ofUGI, the SellerOriginator or the Servicer (if UGI or any of its Affiliates) shall fail to perform or observe in any material respect any term, covenant or agreement under the Agreement or any other Transaction Document and, except as otherwise provided herein herein, such failure shall continue for thirty days after knowledge or in the other Transaction Documents; providednotice thereof, that an Affiliate of (ii) the Seller may provide funds or the Servicer shall fail to make when due any payment or deposit to be made by it under the Agreement and such failure shall continue unremedied for two (2) Business Days or (iii) UGI shall resign as Servicer, and no successor Servicer reasonably satisfactory to the Seller Administrator shall have been appointed;
(b) UGI (or any Affiliate thereof) shall fail to transfer to any successor Servicer when required any rights pursuant to the Agreement that UGI (or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the Seller, UGI or the Originator (or any of their respective officers) under or in connection with its capitalization.
the Agreement or any other Transaction Document, or any written information or report delivered by the Seller, UGI or the Originator or the Servicer pursuant to the Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any respect when made or deemed made (opursuant to paragraph 2(b) The Seller shall not guarantee, and shall not otherwise be liable, of Exhibit II hereof or with respect to any obligation Information Package) or delivered; provided, however, if the violation of this paragraph (c) by the Seller or the Servicer may be cured without any potential or actual detriment to the Purchaser, the Administrator, or any Program Support Provider, the Seller or the Servicer as applicable shall have 30 days from the earlier of (i) such Person’s knowledge of such failure and (ii) notice to such Person of such failure to cure any such violation, before a Termination Event shall occur so long as such Person is diligently attempting to effect such cure;
(d) the Seller or the Servicer shall fail to deliver the Information Package pursuant to the Agreement, and such failure shall remain unremedied for two Business Days;
(e) the Agreement or any purchase or reinvestment pursuant to the Agreement shall for any reason: (i) cease to create, or the Purchased Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage ownership or security interest to the extent of the Purchased Interest in each Pool Receivable, the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, or (ii) cease to create with respect to the Pool Assets, or the interest of the Issuer with respect to such Pool Assets shall cease to be, a valid and enforceable first priority perfected security interest, free and clear of any Adverse Claim;
(f) the Seller, UGI or the Originator shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller, UGI, the Performance Guarantor or the Originator seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Seller, UGI, the Performance Guarantor or the Originator shall take any corporate action to authorize any of the actions set forth above in this paragraph;
(g) (i) the (A) Default Ratio shall exceed 2.25% or (B) Delinquency Ratio shall exceed 10.0% or (ii) the average for three consecutive calendar months of (A) the Default Ratio shall exceed 1.50%, (B) the Delinquency Ratio shall exceed 9.0%, (C) the Dilution Ratio shall exceed 1.75% or (iii) Days’ Sales Outstanding exceeds 45 days;
(h) a Change in Control shall occur with respect to the Seller, the Originator or UGI,
(i) at any time (i) the sum of (A) the Capital plus (B) the Total Reserves, exceeds (ii) the sum of (A) the Net Receivables Pool Balance at such time plus (B) the Issuer’s Share of the amount of Collections then on deposit in the Lock-Box Accounts (other than amounts set aside therein representing Discount and fees), and such circumstance shall not have been cured within five (5) Business Days of becoming aware thereof;
(j) (i) UGI or any of its Affiliates.Subsidiaries shall fail to pay any principal of or premium or interest on any of its Debt that is outstanding in a principal amount of at least $5,000,000 in the aggregate when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement, mortgage, indenture or instrument relating to such Debt (and shall have not been waived); or (ii) any other event shall occur or condition shall exist under any agreement, mortgage, indenture or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement, mortgage, indenture or instrument (and shall have not been waived), if, in either case: (a) the effect of such non-payment, event or condition is to give the applicable debt holders the right (whether acted upon or not) to accelerate the maturity of such Debt, or (b) any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Debt shall be required to be made, in each case before the stated maturity thereof;
(pk) The Seller either: (i) a contribution failure shall beoccur with respect to any Benefit Plan sufficient to give rise to a lien under Section 302(f) of ERISA, at all times, adequately capitalized (ii) the Internal Revenue Service shall file a notice of lien asserting a claim or claims pursuant to engage in the transactions contemplated in its limited liability company agreement.
(q) Each Internal Revenue Code with regard to any of the Seller assets of Seller, the Originator or any ERISA Affiliate and such lien shall have been filed and not released within 10 days, or (iii) the Servicer will take such other actions as are necessary on Pension Benefit Guaranty Corporation shall, or shall indicate its part intention in writing to ensure that the facts and assumptions set forth in the opinion issued by Sidley Austin LLP, as counsel for the Seller, the Originator or any ERISA Affiliate to, either file a notice of lien asserting a claim pursuant to ERISA with regard to any assets of the Seller, the Originator or any ERISA Affiliate or terminate any Benefit Plan subject to Title IV of ERISA that has unfunded benefit liabilities, or any steps shall have been taken to terminate any Benefit Plan subject to Title IV of ERISA that has unfunded benefit liabilities so as to result in connection with this Agreement relating any material liability to substantive consolidation issuesthe Seller or the Originator and such lien shall have been filed and not released within 10 days;
(i) one or more final and unappealable judgments for the payment of money shall be entered against the Seller or (ii) one or more final and unappealable judgments for the payment of money in an amount in excess of $20,000,000, individually or in the aggregate, shall be entered against the Servicer or the Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution;
(m) [RESERVED] or
(n) the “Purchase and Sale Termination Date” under and as defined in the certificates accompanying such opinionPurchase and Sale Agreement shall occur under the Purchase and Sale Agreement or the Originator shall for any reason cease to transfer, remain true or cease to have the legal capacity to transfer, or otherwise be incapable of transferring Receivables to the Seller under the Purchase and correct in all material respects at all timesSale Agreement.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Ugi Corp /Pa/), Receivables Purchase Agreement (Ugi Corp /Pa/)
Separate Existence. Each of the Seller Borrowers and the Servicer hereby acknowledges that the PurchasersLenders, the Purchaser Managing Agents and the Administrator Administrative Agent are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Sellereach Borrower’s identity as a legal entity separate from the Servicer, each Originator, Vistra Herc and their respective other Affiliates. Therefore, from and after the date hereof, each of the Seller Borrowers and the Servicer shall take all steps specifically required by this Agreement to continue the Sellereach Borrower’s identity as a separate legal entity and to make it apparent to third Persons that the Seller such Borrower is an entity with assets and liabilities distinct from those of VistraHerc, the Servicer, each Originator, and any other Person, and is not a division of VistraHerc, 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 Borrowers and the Servicer shall take such actions as shall be required in order to ensure each of the following until the Final Termination Facility Maturity Date:
(a) The Seller US Borrower 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 Assetsthe Collateral; (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. The Canadian Borrower will be an unlimited liability company whose primary activities are restricted in its articles of incorporation to (i) purchasing or otherwise acquiring from any Originator, owning, holding, granting security interests or selling interests in the Collateral; (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 Borrowers 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”) or independent director (the “Independent Director”), as the case may be, shall be an individual who (i) is not, and has not at any time during the five-five (5) year period prior to his or her appointment as Independent Manager or Independent Director, as applicable, been, a direct, indirect or beneficial owner, officer, director, employee, affiliate, associate or supplier of VistraHerc, the Servicer or any of its or their Affiliates (other than his or her service as an independent manager or director or in a similar capacity of any such Person); and (ii) has at least three (3) 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 US Borrower, and the constating documents of the Canadian Borrower, shall at all times provide that (i) the Sellersuch Borrower’s Manager (as defined in its limited liability company agreementagreement or such ▇▇▇▇▇▇▇▇’s Director (as defined in the constating documents of the Canadian Borrower) shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Seller such Borrower unless the Manager and the Independent Manager or the Director and the Independent Director, as applicable, 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 ManagerManager or Independent Director, as applicable.
(d) The Neither the Independent Manager nor Independent Director of a Borrower shall not at any time serve as a trustee in bankruptcy for the Sellereither Borrower, VistraHerc, the Servicer or any Originator or any of their respective other Affiliates.
(e) Any employee, consultant or agent of the Seller Borrowers will be compensated from the Seller’s Borrowers’ funds for services provided to the SellerBorrowers. The Seller Borrowers will not engage any agents other than its their attorneys, auditors, other professionals, a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool.
(f) The Seller Borrowers will contract with the Servicer, to perform for the Seller Borrowers all operations required on a daily basis to service the Receivables Pool. The Seller Borrowers will pay the Servicer the Servicing Fee pursuant to the Transaction Documents. Except as otherwise permitted by this Agreement, the Seller Borrowers will not incur any material indirect or overhead expenses for items shared with Vistra Herc or the Servicer (or any other Affiliate thereof) that are not reflected in the Servicing Fee. To the extent, if any, that the Seller Borrowers (or any Affiliate thereof) shares share 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 Borrowers’ operating expenses will not be paid by VistraHerc, the Servicer, any Originator or any other Affiliate thereof.
(h) The Seller’s Borrowers’ books and records will be maintained separately from those of VistraHerc, the Servicer or any Originator or any of their respective other Affiliates.
(i) The Seller’s Borrowers’ assets shall not be included in the consolidated financial statements of VistraHerc, 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 Borrowers’ assets and credit are not available to satisfy the debts and obligations of such Affiliates or any other Person and (ii) the Seller’s Borrowers’ assets shall be listed on the Seller’s Borrowers’ own respective separate balance sheetsheets.
(j) The Seller’s Borrowers’ assets will be maintained in a manner that facilitates their identification and segregation from those of VistraHerc, the Servicer or any Originator or any of their respective other Affiliates.
(k) The Seller Borrowers will strictly observe corporate formalities in its dealings with VistraHerc, the Servicer or any Originator or any of their respective other Affiliates, and ensure that funds or other assets of the Seller Borrowers are not commingled with those of VistraHerc, the Servicer or any Originator or any of their respective other Affiliates except as permitted by this Agreement. The Seller Borrowers shall not maintain joint bank accounts or other depository accounts to which VistraHerc, the Servicer or any Originator or any of their respective other Affiliates has independent access.
(l) The Seller Borrowers will maintain arm’s-length relationships with each of VistraHerc, the Servicer or any Originator (and any of their other Affiliates). Any Other than with respect to certain services to be provided during the continuation of an Event of Default in accordance with Section 7.5(b), any Person that renders or otherwise furnishes services to the Seller Borrowers will be compensated by the Seller Borrowers at market rates for such services it renders or otherwise furnishes to the SellerBorrowers. Neither the SellerBorrower, 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 Borrowers 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 VistraHerc, the Servicer or other Originator shall pay the salaries of Seller’s the Borrowers’ employees, if any.
(n) No Affiliate of the Seller Borrowers shall advance funds to, or guaranty debts of, the SellerBorrowers, except as otherwise provided herein or in the other Transaction Documents; provided, that an Affiliate of the Seller Borrowers may provide funds to the Seller Borrowers in connection with its capitalization.
(o) The Seller Borrowers shall not guarantee, and shall not otherwise be liable, with respect to any obligation of any of its AffiliatesAffiliates other than as provided in this Agreement or the other Transaction Documents.
(p) The Seller Borrowers shall be, at all times, adequately capitalized to engage in the transactions contemplated in its their respective limited liability company agreementagreements.
(q) The consolidated financial statements of Herc Parent shall contain notes clearly stating that the Borrowers are separate legal entities and the Borrowers’ assets and credit are not available to satisfy the debts and obligations of Herc Parent, Herc, any Originator, any Servicer or any other Person.
(r) Each of the Seller Borrowers 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 opinions issued by Sidley Austin ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, as counsel for the SellerBorrowers, the Servicer and the Performance Guarantor, and ▇▇▇▇▇▇▇▇ LLP, as special Canadian counsel for the Borrowers, the Servicer and the Performance Guarantor, 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.. Each of the following shall be a “Event of Default”
(i) except as otherwise provided herein, either Borrower, any Originator or the Servicer shall fail to perform or observe any term, covenant or agreement under this Agreement or any other Transaction Document and such failure shall continue for thirty (30) days after knowledge of, or notice thereof to, such Borrower, such Originator or the Servicer, as applicable; (ii) either Borrower or the Servicer shall fail to make when due any payment or deposit required to be made by it under this Agreement and such failure shall continue unremedied for two (2) Business Days; or (iii) Herc shall resign as Servicer, and no successor Servicer reasonably satisfactory to the Administrative Agent shall have been appointed;
(b) either Borrower shall fail to comply with the requirements of Section 7.3 and such failure shall continue for two (2) Business Days;
(c) any representation or warranty made or deemed made by either Borrower, any Originator, the Performance Guarantor or the Servicer (or any of their respective officers) in this Agreement or any other Transaction Document to which it is a party, or any information or report delivered by either Borrower, any Originator, the Performance Guarantor or the Servicer pursuant to this Agreement or any other Transaction Document to which it is a party shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered, and shall remain incorrect or untrue for thirty (30) days after notice thereof to the Borrowers, the Performance Guarantor or the Servicer, as applicable;
(d) the Servicer shall fail to deliver when due any Information Package required to be delivered by it pursuant to this Agreement, and such failure shall remain unremedied for five (5) Business Days;
(e) the Administrative Agent, for the benefit of each Lender Group, shall for any reason not have a First Priority Interest in the Pool Receivables, the Related Security, the Collections, the Collection Accounts and the Concentration Accounts;
(f) either Borrower, any Originator, the Performance Guarantor or the Servicer shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against either Borrower, any Originator, the Performance Guarantor or the Servicer seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of sixty (60) days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or either Borrower, any Originator, the Performance Guarantor or the Servicer shall take any corporate action to authorize any of the actions set forth above in this paragraph;
(g) (i) the average for three (3) consecutive Settlement Periods of (A) the Default Ratio shall exceed six and one-quarter percent (6.25%); (B) the Delinquency Ratio shall exceed fourteen and three-quarters percent (14.75%); or (C) the Dilution Ratio shall exceed three and three-quarters percent (3.75%); or (ii) Days Sales Outstanding shall exceed seventy-five (75) days;
(h) a Change in Control shall occur;
(i) the sum of (i) the Aggregate Advance Principal Balance at any time plus (ii) the Total Reserves at such time, exceeds the sum of (A) the Net Receivables Pool Balance at such time plus, without duplication, (B) the amount of Collections on deposit in the Collection Accounts and the Concentration Accounts at such time (other than amounts set aside therein representing Accrued Interest and fees) for two (2) consecutive Business Days;
(i) either Borrower shall fail to pay any principal or premium or interest on any of its Debt when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement, mortgage, indenture or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement, mortgage, indenture or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement, mortgage, indenture or instrument (without giving effect to any waiver of such defaults under the applicable agreement, mortgage, indenture or instrument), if, in either case: (A) the effect of such nonpayment, event or condition is to give the applicable debtholders the right (whether acted upon or not) to accelerate the maturity of such Debt; or (B) any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Debt shall be required to be made, in each case before the stated maturity thereof; or
(ii) (x) the Performance Guarantor, any Originator, the Servicer or any of their respective Subsidiaries (other than the Borrowers) shall fail to pay any principal of or premium or interest on any of its Debt that is outstanding in a principal amount of at least $300,000,000, in the case of the Performance Guarantor, or $300,000,000, in the case of any Originator or the Servicer, in each case, in the aggregate, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement, mortgage, indenture or instrument relating to such Debt; or (y) any other default in the observance or performance of
Appears in 2 contracts
Sources: Receivables Financing Agreement (Herc Holdings Inc), Receivables Financing Agreement (Herc Holdings Inc)
Separate Existence. Each of the Seller and the Servicer CONSOL Energy hereby acknowledges that the Purchasers, the Purchaser Agents Conduit Purchasers 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 CONSOL Energy and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer CONSOL Energy shall take all steps specifically required by this the Agreement or reasonably required by the Administrator 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, CONSOL Energy and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsCONSOL Energy, 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 CONSOL Energy shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited liability company purpose corporation whose primary activities are restricted in its limited liability company agreement to certificate of incorporation to: (i) purchasing or otherwise acquiring from any Originatorthe Originators (or their Affiliates), owning, holding, granting security interests or selling interests in Pool Assets; Assets (or other receivables originated by the Originators or their Affiliates, and certain related assets), (ii) entering into agreements for the selling and servicing of the Receivables Pool; Pool (or other receivables pools originated by the Originators or their Affiliates), 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 member of the Seller’s Directors (the “Independent ManagerDirector”) 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 ownerstockholder, officer, director, employee, affiliate, associate or supplier of Vistra, the Servicer CONSOL Energy 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 securitiesAffiliates. The limited liability company agreement certificate of incorporation of the Seller shall at all times provide that that: (i) the Seller’s Manager (as defined in its limited liability company agreement) Board of Directors 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 Director 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.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer CONSOL Energy or any Originator or any of their respective other Affiliates.Affiliate thereof;
(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, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(f) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer CONSOL Energy (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, it being understood that the Servicer may CONSOL Energy shall 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 CONSOL Energy or any other Affiliate thereof.;
(h) All of the Seller’s business correspondence and other communications shall be conducted in the Seller’s own name and on its own separate stationery;
(i) The Seller’s books and records will be maintained separately from those of Vistra, the Servicer or CONSOL Energy and any Originator or any of their respective other Affiliates.Affiliate thereof;
(ij) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer CONSOL Energy or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that that: (i) such Affiliates are separate legal entities and the Seller’s assets and credit are not available to satisfy the debts and obligations a special purpose corporation exists as a Subsidiary of such Affiliates or any other Person CONSOL Energy, and (ii) the Seller’s Originators have sold receivables and other related assets shall be listed on the Seller’s own separate balance sheet.to such special purpose Subsidiary that, in turn, has sold undivided interests therein to certain financial institutions and other entities;
(jk) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer CONSOL Energy or any Originator or any of their respective other Affiliates.Affiliate thereof;
(kl) The Seller will strictly observe corporate organizational formalities in its dealings with Vistra, the Servicer CONSOL Energy or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer CONSOL Energy or any Originator or any of their respective other Affiliates Affiliate thereof except as permitted by this Agreementthe Agreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer CONSOL Energy or any Originator or any of their respective other Affiliates Affiliate thereof has independent access.. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of CONSOL Energy or any Subsidiary or other Affiliate of CONSOL Energy. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(lm) The Seller will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator CONSOL Energy (and any of their other AffiliatesAffiliate thereof). 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, Seller nor the Servicer or any Originator, on the other, CONSOL Energy 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 CONSOL Energy will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity.;
(mn) None of Vistra, the Servicer or other Originator CONSOL Energy shall not 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 does not guaranteeand will not hold itself responsible for the obligations of any other Person, and shall not otherwise be liable, with respect to any obligation guarantee or become liable for the debts of any of its Affiliates.other Person;
(p) The Seller shall be, at all times, adequately capitalized to engage in the transactions contemplated will conduct its business in its limited liability company agreement.own name and shall hold itself out as a separate entity from any other Person;
(q) Each The Seller shall maintain a sufficient number of employees and adequate capital in light of its contemplated business activities;
(r) The Seller shall not acquire the obligations or securities of any of its shareholders; and
(s) The Seller and the Servicer will take such other actions as are necessary on shall not pledge its part to ensure that the facts and assumptions set forth in the opinion issued by Sidley Austin LLP, as counsel assets for the Sellerbenefit of any other Person or make any loans or advances to any other Person, in connection with this Agreement relating except pursuant to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all timesTransaction Documents.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Consol Energy Inc), Receivables Purchase Agreement (Consol Energy Inc)
Separate Existence. Each of the Seller and the Servicer hereby acknowledges and agrees that the Purchasers, the Purchaser Agents Purchasers 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 Feed and the Servicer, each Originator, Vistra and their respective other AffiliatesOriginators. Therefore, from and after the date hereof, each of the Seller and the Servicer LOL shall take all steps specifically required by this Agreement or reasonably required by the Required Purchasers or the Administrator 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, Feed and the Servicer, each Originator, other Originators and any other Person, and is not a division of VistraFeed, the Servicer, the Originators, its or their respective any other Affiliates Originator or any other Person. Without in any way 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 LOL shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited purpose limited liability company whose primary activities are restricted in its limited liability company agreement certificate of formation to (i) purchasing or otherwise acquiring from any OriginatorOriginators, owning, holding, granting security interests interests, or selling interests 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.. Seller shall observe all company procedures required by it certificate of organization, its limited liability company agreement and the limited liability law of the State of Delaware. All distributions of Seller will be paid and declared in accordance with the law of the State of Delaware;
(b) The Seller shall not engage in any business or activity, or incur any indebtedness or liability, liability other than as expressly permitted by the Transaction Documents.;
(c) The business and affairs of Seller are and will be managed by or under the direction of Seller’s Board of Managers. Seller at all times will ensure that the Board of Managers duly authorizes all company actions requiring authorization by its Board of Managers. When necessary, Seller will obtain proper authorization from Feed as its sole member for company action. The officers and managers of Seller shall make decisions with respect to the business and daily operations of Seller independent of and not dictated by Feed or any other Originator. In addition, Seller shall ensure that its officers and managers will adhere to all statutes, rules, by-laws or other obligations regarding conflicts of interest and participation in decision-making by officers and managers who may have a conflict of interest with respect to the subject matter of the decision;
(d) Not less fewer than one independent manager (the “Independent Manager”1) member of Seller’s Board of Managers 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 securitiesManager. The limited liability company agreement certificate of the formation of Seller shall at all times provide that (i) the Seller’s Manager (as defined in its limited liability company agreement) Board of Managers shall not approve, or nor take any other action to cause the filing of, a voluntary bankruptcy petition or a merger or dissolution with respect to the Seller unless the Manager and the Independent Manager shall approve the taking of such action in writing before prior to the taking of such action; action and (ii) such provision cannot be amended without the prior written consent of the Independent Manager.;
(de) The Independent Manager shall not at any time serve as a trustee in bankruptcy for the Seller, VistraFeed, the Servicer or any other Originator or any of their respective other Affiliates.Affiliate thereof;
(ef) 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, auditors and other professionals, and a servicer and any other agent Servicer as contemplated by the Transaction Documents this Agreement for the Receivables Pool., which Servicer will be fully compensated for its services by payment of the Servicer’s Fee and a manager, which manager will be fully compensated from Seller’s funds;
(fg) 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 Feed (or any other Originator or Affiliate thereof) that which are not reflected in the Servicing Servicer’s Fee. To the extent, if any, that the Seller (or any other Affiliate thereof) shares items of expenses not reflected in the Servicing Servicer’s 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, it being understood that the Servicer may Feed shall pay all (or any portion of) the expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legalincluding, agency without limitation, legal and other fees.;
(gh) The Seller will pay fair market rent for any office space shared with any Originator and a fair share of any overhead costs. Seller’s operating expenses will not be paid by Vistra, the ServicerFeed, any other Originator or any Affiliate thereof. Seller shall pay from its own separate assets all material liabilities incurred by it, including the wages and salaries of its officers and all material administrative expenses. Seller will reimburse the applicable Originator for its allocable portions of any shared expenses;
(i) Seller will have its own stationery and an address and telephone number separate and distinct from the address and telephone number of any of the Originators. Seller will continue to conduct its business solely in its own name so as not to mislead others as to the identity of Seller. All oral and written communications, including without limitation letters, invoices, purchase orders, contracts, statements and applications, shall be made solely in the name of Seller if related to Seller, or an Originator if related to such Originator, and shall not be made in the name of Seller if related to an Originator or the name of an Originator if related to Seller;
(j) Seller maintains and will maintain separate corporate records, documents and books of accounting from those of Feed, any other Originator or any other Affiliate thereof.
(h) The Seller’s entity, and keeps and will keep correct and complete books and records will be maintained separately from those of Vistra, account and minutes of the Servicer or any Originator or any meetings and other proceedings of their respective other Affiliates.its members and the Board of Managers;
(ik) The Seller’s assets shall not be included in Seller will maintain separate financial statements from the consolidated Originators. All financial statements of VistraLOL, the Servicer Feed or any Originator Affiliate thereof that are Consolidated to include Seller will contain appropriate footnotes 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 will otherwise disclose that (iA) such Affiliates are the Receivables and Related Rights have been sold (or contributed) to Seller pursuant to the Purchase and Sale Agreement, and (B) Seller is a separate legal entities and the entity with creditors who have received security interests in 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.assets;
(jl) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of VistraFeed, the Servicer or any other Originator or any of their respective other Affiliates.Affiliate thereof;
(km) The Seller will strictly observe corporate formalities in its dealings with VistraFeed, the Servicer other Originators or any Originator or any of their respective other AffiliatesAffiliates thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of VistraFeed, the Servicer or any other Originator or any of their respective other Affiliates except as permitted by this AgreementAffiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which VistraFeed, the Servicer or any other Originator or any of their respective Affiliate thereof (other Affiliates than Feed in its capacity as Servicer) has independent access.;
(ln) The Seller will maintain arm’s-length arms’-length relationships with Feed, each of Vistra, the Servicer or any other Originator (and any of their other Affiliates)Affiliate thereof. Any Person that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services it renders or otherwise furnishes to the Seller. Neither the SellerSeller nor Feed will guaranty, on the one hand, nor the Servicer or assume any Originator, on the other, will be obligations of 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 (i) in the othercase of Seller, Feed or any other Originator and (ii) in the case of Feed, Seller. The Seller and the Servicer Feed will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single 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.and
(o) The Seller shall not guarantee(i) will act solely in its own name and through its duly authorized officers or agents in the conduct of its businesses, (ii) will take no action which may mislead third parties as to the separate corporate identities and separate assets and liabilities of each Originator and Seller, and shall not otherwise be liable(iii) will have and utilize its own invoices and letterhead separate from any Originator. Without limiting the foregoing, with respect LOL and Seller agree to any obligation of any of its Affiliates.
(p) The Seller shall be, at take 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 corporate separateness assumptions, statements and assumptions representations 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, Exhibit 7.4 attached hereto are and in the certificates accompanying such opinion, shall at all times remain true and correct in all material respects at all timescorrect.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Land O Lakes Inc), Receivables Purchase Agreement (Land O Lakes Inc)
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 No Borrower Party shall take all steps specifically required by this Agreement any action, or conduct its affairs in a manner, that is likely to continue the Seller’s identity as a result in its separate legal entity and to make it apparent to third Persons that the Seller is an entity with existence being ignored or in its assets and liabilities distinct from those of Vistra, the Servicer, each Originator, and being substantively consolidated with any other PersonPerson in a bankruptcy, and is not a division of Vistra, the Servicer, the Originators, its reorganization or their respective other Affiliates or any other Personinsolvency proceeding. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth hereinforegoing, 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 except for a Designated Subsidiary and any subsidiary of a Designated Subsidiary formed to be a limited liability company whose primary activities are restricted co-issuer in its limited liability company agreement to (i) purchasing or otherwise acquiring from any Originatorconnection with a Permitted CLO, 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 a Borrower Party shall not engage in have 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 subsidiaries without the prior written consent of the Independent Manager.
Administrative Agent and (db) The Independent Manager no Borrower Party 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 (A) engage in any transaction with any shareholder that would constitute a conflict of interest or pay dividends; provided that the foregoing shall not be included in prohibit a Borrower Party from entering into the consolidated financial statements of Vistra, the Servicer transactions contemplated by its administration agreement with its corporate administrator or (B) pay any Originator or any of their respective amounts other Affiliates unless required than in accordance with GAAP and any such consolidated financial statements shall contain detailed notes clearly stating that the terms of the Collateral Documents, (iii) such Affiliates are separate legal entities and the Seller’s assets and credit are not available to satisfy the debts and obligations commingle its funds with those of such Affiliates or any other Person and or entity; (iiiii) 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 as being liable for the debts of any other entity, nor agree to be responsible permit the Equityholder to hold itself out as liable 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.
Borrower; (miv) 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 guarantee any obligation of any Person, including any Affiliate; (v) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the Collateral Documents; (vi) 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 Borrower Parties may invest in those Warehouse Assets and other investments permitted under the Collateral Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Collateral Documents and permit the same to remain outstanding in accordance with such provisions; (vii) fail to pay its debts and liabilities from its assets when due; (viii) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or other transfer of any of its Affiliates.
(p) The Seller shall be, at all times, adequately capitalized to engage in assets outside the transactions contemplated in its limited liability company agreement.
(q) Each ordinary course of the Seller and the Servicer will take Borrower’s business other than such other actions activities as are necessary on its part expressly permitted pursuant 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 issuesor (ix) release, and sell, transfer, convey or assign any Warehouse Asset unless in accordance with the certificates accompanying such opinion, remain true and correct in all material respects at all timesCollateral Documents.
Appears in 2 contracts
Sources: Credit Agreement (Blackstone Private Credit Fund), Credit Agreement (Blackstone Private Credit Fund)
Separate Existence. Each The Issuer shall at all times:
(i) 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 Seller salary and benefit costs associated with all such common officers and employees;
(ii) to the Servicer hereby acknowledges 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 PurchasersIssuer contracts or does business with venders or service providers where the goods and services provided are partially for the benefit of any other Person, the Purchaser Agents costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods or services are provided, and each such entity shall bear its fair share of such costs;
(iii) enter into all transactions between the Administrator Issuer and any other Person, whether currently existing or hereafter entered into, only on an arm’s length basis;
(iv) to the extent that the Issuer 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 organizational documents and observe all necessary, appropriate and customary limited liability company formalities, including, but not limited to, holding all regular and special members’ and directors’ meetings appropriate to authorize all limited liability company action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, utilizing its own separate stationery, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(vi) not assume or guarantee any of the liabilities of any Seller or any Affiliate thereof;
(vii) take, or refrain from taking, as the case may be, all other actions that are entering into necessary to be taken or not to be taken in order to comply with this Section 8.6(l);
(viii) from and after the transactions contemplated by this Agreement date of issuance of the second Series of Notes, comply with all material assumptions of fact set forth in the opinion with respect to certain bankruptcy matters delivered on the date of issuance of the second Series of Notes, relating to the Issuer, its obligations hereunder and under the other Transaction Documents in reliance upon to which it is a party and the Seller’s identity conduct of its business with Cofina, CFA, any Seller or any other Person;
(ix) hold itself out to the public 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 conduct its business solely 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 own name in order not commingled with those of Vistra, the Servicer or any Originator or any of their respective other Affiliates except (A) to mislead others 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 identity with which such services other party is transacting business or (B) to suggest that 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 is responsible for the debts of any other Person;
(x) maintain adequate capital for the other normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(xi) prevent any pledge or transfer (whether in any one or more transactions) of a direct or indirect ownership interest in the decisions Issuer;
(xii) refrain from acquiring the obligations or actions respecting securities of its Affiliates;
(xiii) have at least one (1) independent director (the daily “Independent Director”) that is a member of a professional organization in the business of providing persons for such directorships and affairs which in any case is not and has not been for at least five (5) years a director, officer, employee, trade creditor or shareholder (or spouse, parent, sibling or child of the other. The Seller and foregoing) of (A) CFA, CHS or Cofina, (B) the Servicer will immediately correct Issuer, (C) any known misunderstanding principal of CFA, CHS or Cofina, (D) any Affiliate of CFA, CHS or Cofina or (E) any Affiliate of any principal of CFA, CHS or Cofina; provided, however, that such Independent Director may be an independent director of another special purpose entity affiliated with respect to the foregoingCFA, and they will not operate CHS or purport to operate as an integrated economic unit with respect to each other or in their dealing with any other entity.Cofina; and
(mxiv) 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 expressly contemplated by this Indenture, maintain its own deposit account or in the other Transaction Documents; providedaccounts, that an Affiliate separate from those of any Affiliate, with commercial banking institutions. The funds of the Seller may provide funds to the Seller in connection with its capitalization.
(o) The Seller shall Issuer will not guarantee, and shall not otherwise be liable, with respect diverted 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 other Person or for other than business uses 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 timesIssuer.
Appears in 2 contracts
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 DateThe Borrower shall:
(a) The Seller will be a limited liability company whose primary activities are restricted in its limited liability company agreement to maintain entity records and books of account separate from those of any other entity (i) purchasing or otherwise acquiring from including any Originator, owning, holding, granting security interests or selling interests in Pool Assets; (ii) entering into agreements for the selling and servicing entity which is an Affiliate of the Receivables Pool; and (iii) conducting such other activities as it deems necessary or appropriate to carry out its primary activities.Borrower);
(b) The Seller shall not engage in commingle its funds or assets with those of any business or activity, or incur other entity (including any indebtedness or liability, other than as expressly permitted by entity which is an Affiliate of the Transaction Documents.Borrower);
(c) Not less than one independent manager provide that its board of directors or other analogous governing body will hold all appropriate meetings to authorize and approve such entity’s actions, which meetings will be separate from those of other entities;
(d) comply in all material respects with its Organizational Documents;
(e) ensure that the “Independent Manager”) Borrower’s Organizational Documents contains a statement that all interests in the Borrower shall be securities governed by Article 8 of the Uniform Commercial Code and shall be evidenced by certificates, and that such certificated interests shall be in registered form within the meaning of Article 8 of the Uniform Commercial Code;
(f) ensure that the Borrower’s Organizational Documents contains a statement that the only Debt the Borrower is allowed to incur is Permitted Debt;
(g) ensure that the Borrower’s Organizational Documents contain a requirement that any agreements the Borrower enters into with an individual who Affiliate is on arm’s length terms (other than the Sponsor Support Agreement);
(h) ensure that the Borrower’s Organizational Documents contain a requirement to maintain at least one Independent Member, other than during one or more periods not in any one case to exceed thirty (30) consecutive days; provided that, during the vacancy, no action may be taken which requires the approval of the Independent Member (including bankruptcy actions); and
(i) is not, and has not at any time during ensure that the five-year period prior to his Borrower’s Organizational Documents contain a requirement for an affirmative vote 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 Member in bankruptcy for the Seller, Vistra, the Servicer or any Originator or connection with 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 following matters: in order 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.
authorize (i) The Seller’s assets shall not be included in the consolidated financial statements filing of Vistraany insolvency or reorganization case or proceeding, instituting proceedings to have the Servicer Borrower adjudicated bankrupt or insolvent, instituting proceedings under any Originator applicable insolvency law, seeking any relief under any law relating to relief from debts or any the protection 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 Vistradebtors, 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 consenting to the Seller will be compensated by filing or institution of bankruptcy or insolvency proceedings against the Seller at market rates for such services it renders Borrower, filing a petition seeking or otherwise furnishes consenting to the Seller. Neither the Sellerreorganization, on the one hand, nor the Servicer liquidation 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 relief with respect to the Borrower under any applicable federal or state law relating to bankruptcy, reorganization or insolvency, seeking or consenting to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian, or any similar official for the Borrower or a substantial part of its property, making any assignment for the benefit of creditors, admitting in writing the Borrower’s inability to pay its debts as they become due, or taking action in furtherance of any of the foregoing, and they will not operate or purport to operate as an integrated economic unit with respect to each other (ii) merging, consolidating or in their dealing combining the Borrower or any subsidiary of the Borrower with any other entity.
(m) None , dissolving or winding-up the Borrower, selling, transferring or otherwise disposing of Vistra, the Servicer all or other Originator shall pay the salaries of Seller’s employees, if any.
(n) No Affiliate substantially all of the Seller shall advance funds to, Borrower’s assets or guaranty debts of, the Seller, except as otherwise provided herein approving any plan 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 agreement to engage in the transactions contemplated in its limited liability company agreement.
(q) Each any 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 timesforegoing actions.
Appears in 2 contracts
Sources: Credit Agreement (Dynegy Inc /Il/), Credit Agreement (Dynegy Inc.)
Separate Existence. Each of the Seller and the Servicer Airgas hereby acknowledges that the Purchasers, the Purchaser Agents Agents, the Administrator, the Liquidity Providers and the Administrator other Program Support Providers are entering into the transactions contemplated by this the Agreement and the other Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from the Servicer, each Originator, Vistra Airgas and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer Airgas shall take all steps specifically required by this the Agreement or reasonably required by the Administrator 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, Airgas and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsAirgas, 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 Airgas shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited liability company purpose corporation whose primary activities are restricted in its limited liability company agreement to certificate of incorporation to: (i) purchasing or otherwise acquiring from any Originatorthe Originators, 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 (member of the “Independent Manager”) Seller’s Board of Directors shall be an individual who (iA) is not, and has not at any time during the five-year period (1) 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 experience as an independent manager or director who satisfies the criteria set forth in a similar capacity of any such Personclauses (A)(2); , (B) and (iiC) has (with respect to the entity for which such Person served as an independent director) for a corporation or limited liability company whose organizational documents required the unanimous consent of all independent directors thereof before such entity 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 (2) at least three years of employment experience with one or more of AMACAR Group, L.L.C., Lord Securities Corporation or Global Securitization Services LLC (each, a “Securitization Management Provider”) or one or more other nationally recognized entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities (each, an “Other Management Provider”), (B) is employed by (x) a Securitization Management Provider, or (y) if no Securitization Management Provider is able to provide services to Seller in respect of the Independent Director, an Other Management Provider, and (C) is not, and has not been for a period of five years prior to his or her appointment as an Independent Director of the Seller: (1) a stockholder (whether direct, indirect or beneficial), customer, affiliate, associate, advisor or supplier of Airgas or any of its respective Affiliates, (2) a director, officer, employee, partner, manager, attorney or consultant of Airgas or any of its Affiliates (Airgas and its Affiliates other than the Seller being hereinafter referred to as the “Parent Group”), (3) a person related to any person referred to in clauses (1) or (2) above, (4) a person or other entity controlling or under common control with any such stockholder, partner, manager, customer, supplier, employee, officer or director or (5) a trustee, conservator or receiver for any member of the Parent Group (such an individual meeting the requirements set forth above, the “Independent Director”) (it being understood that, (i) as used in this paragraph (c), “control” means the possession directly or indirectly of the power to direct or cause the direction of management policies or activities of a person or entity whether through ownership of voting securities, by contract or otherwise, and (ii) neither AMACAR INVESTMENTS, L.L.C. (“AMACAR”) nor the Seller shall be deemed an Affiliate for purposes of this paragraph (c) and neither AMACAR, the Seller nor any employee thereof shall be deemed to be a stockholder of the Seller for purposes of clause (C)(1) above). The limited liability company agreement certificate of incorporation of the Seller shall at all times provide that provide: (i) for the same definition of “Independent Director” as set forth above, (ii) that the Seller’s Manager (as defined in its limited liability company agreement) Board of Directors 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 Director shall approve the taking of such action in writing before the taking of such action; action and (iii) that the provisions required by clause (ii) such provision of this sentence 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 Director 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.Administrator;
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Airgas Inc), Receivables Purchase Agreement (Airgas Inc)
Separate Existence. Each (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the Seller entity with which such persons are concerned, and shall use its best efforts to avoid the Servicer hereby acknowledges appearance that it is conducting business on behalf of any Affiliate thereof or that the Purchasers, assets of the Purchaser Agents Borrower are available to pay the creditors of any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of any other Person.
(c) It shall pay its own operating expenses and liabilities from its own funds.
(d) It shall ensure that the Administrator are entering into annual financial statements of the Equityholder shall disclose the effects of the transactions contemplated by this Agreement hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(i) It shall not (A) amend, supplement or otherwise modify the Special Purpose Provisions contained in its organizational documents (as defined therein), except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(j) It shall at all times hold itself out to the public and all other Transaction Documents in reliance upon the Seller’s identity Persons as a legal entity separate from the Servicerits member and from any other Person (other than, each Originatorif applicable, Vistra and their respective other Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer for U.S. tax purposes).
(k) It shall take all steps specifically required by this Agreement to continue the Seller’s identity as a file its own Tax returns 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, if and to the extent required to file tax returns under Applicable Law, except to the extent that it is treated as a “disregarded entity” for tax purposes and is not a division required to file Tax returns under Applicable Law, and shall pay any U.S. federal and other material Taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, showing its assets and liabilities separate and apart from those of Vistra, the Servicer, the Originators, any other Person and not have its or their respective other Affiliates or assets listed on any financial statement of 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 its assets may pay all (or any portion of) the expenses relating to the preparation, negotiation, execution and delivery be included in a consolidated financial statement 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 its 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.
so long as (i) The Seller’s assets appropriate notation 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 made on such consolidated financial statements shall contain detailed notes clearly stating (if any) to indicate its separateness from such Affiliate and to indicate that (i) such Affiliates are separate legal entities and the Seller’s its assets and credit are not available to satisfy the debts and other obligations of such Affiliates Affiliate or any other Person and (ii) the Seller’s such assets shall also be listed on the Seller’s its own separate balance sheet.
(jn) The Seller’s assets will be maintained It shall not, except for capital contributions or capital distributions permitted under the terms and conditions of its organizational documents and properly reflected on its books and records, enter into any transaction with an Affiliate except on commercially reasonable terms similar to those available to unaffiliated parties in a manner that facilitates their identification and segregation from those of Vistra, the Servicer or any Originator or any of their respective other Affiliatesan arm’s-length transaction.
(ko) The Seller will strictly observe corporate formalities It shall maintain a sufficient number of employees (which number may be zero) in light of its dealings with Vistracontemplated business purpose and pay the salaries of its own employees, the Servicer or any Originator or any of their respective other Affiliatesif any, 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 accessonly from its own funds.
(lp) The Seller will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator It shall use separate invoices bearing its own name.
(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 q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not require its equityholders to make additional capital contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with respect the Transaction Documents.
(t) It shall 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 it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not, to the foregoingfullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets and they will such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It shall not operate buy or purport to operate hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as an integrated economic unit with respect to each other expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits, for the avoidance of doubt, the formation of REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in their dealing with any other entity.
(mx) None of Vistra, It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Servicer or other Originator shall pay the salaries of Seller’s employees, if anyTransaction Documents.
(ny) No Affiliate of It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by 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.
(oz) The Seller It shall not guarantee, allocate fairly and shall not otherwise be liable, reasonably any overhead expenses that are shared with respect to any obligation of any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(paa) Neither the Borrower nor the Equityholder shall take any action contrary to the “Facts and Assumptions” or “Further Assumptions” sections in the opinion or opinions of Milbank LLP, dated the date hereof, relating to certain nonconsolidation and true sale matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior unanimous written consent of an Independent Manager. The Seller organizational documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at all timesleast one (1) Independent Manager; (b) the Borrower shall not, adequately capitalized to engage in without the transactions contemplated in its limited liability company agreement.
(q) Each prior written consent of the Seller Independent Manager, on behalf of itself or Borrower, take any Material Action or any action that might reasonably cause such entity to become insolvent, and when voting with respect to such matters, the Servicer will take Independent Manager shall consider only the interests of the Borrower, including its creditors; and (c) no Independent Manager of the Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Manager, together with a statement as to the reasons for such other actions as are necessary on its part to ensure removal, and (ii) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the facts and assumptions requirements set forth in the opinion issued by Sidley Austin LLP, as counsel organizational documents of the Borrower for an Independent Manager. No resignation or removal of an Independent Manager shall be effective until a successor Independent Manager is appointed and has accepted his or her appointment. No Independent Manager may be removed other than for Cause. Nothing in this Section 10.5 other than Section 10.5(k) shall bind the Seller, in connection with this Agreement relating to substantive consolidation issues, and in position of the certificates accompanying such opinion, remain true and correct in all material respects at all timesBorrower for U.S. tax purposes.
Appears in 2 contracts
Sources: Loan Financing and Servicing Agreement (Oaktree Strategic Credit Fund), Loan Financing and Servicing Agreement (Oaktree Strategic Credit Fund)
Separate Existence. Each of the Seller and the Servicer hereby acknowledges that the Purchasers, the Purchaser Agents Purchasers 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 C▇▇▇▇▇ Tire, the Servicer, each Originator, Vistra Originators 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 or reasonably required by the Administrator or any Purchaser Agent 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 VistraC▇▇▇▇▇ Tire, the Servicer, each Originator, any Originator and any other Person, and is not a division of VistraC▇▇▇▇▇ Tire, the Servicer, the Originators, its or their respective other Affiliates any Originator 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 Datethat:
(a) The Seller will be a limited liability company whose primary activities are restricted in its limited liability company operating agreement to to: (i) purchasing or otherwise acquiring from any Originatorthe Originators, 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 liabilityliability (including, without limitation, any assumption or guaranty of any obligation of C▇▇▇▇▇ Tire, any Originator or any Affiliate thereof), other than as expressly permitted by the Transaction Documents.;
(ci) Not less than one independent manager member of the Seller’s Board of Directors (the “Independent ManagerDirector”) shall be an individual a natural person (A) who (i) is not, not at the time of initial appointment and has not been at any time during the five-year period prior to his or her appointment as five (5) years preceding such appointment: (1) an equityholder, director (other than the Independent Manager been, a direct, indirect or beneficial ownerDirector), officer, employee, member, manager, attorney or partner of C▇▇▇▇▇ Tire, Seller or any of their Affiliates; (2) a customer of, supplier to or other person who derives more than 1% of its purchases or revenues from its activities with C▇▇▇▇▇ Tire, Seller or any of their Affiliates; (3) a person or other entity controlling, controlled by or under common control with any such equity holder, partner, member, manager customer, supplier or other person; or (4) a member of the immediate family of any such equity holder, director, officer, employee, affiliatemember, associate manager, partner, customer, supplier or supplier of Vistra, the Servicer or any of its or their Affiliates other person and (other than his or her service B) who has (1) prior experience as an independent director for a corporation or an independent manager of a limited liability company whose charter documents required the unanimous consent of all independent director or in independent managers thereof before such corporation could consent to the institution of bankruptcy or insolvency proceedings against it or could file a similar capacity of petition seeking relief under any such Person); applicable federal or state law relating to bankruptcy and (ii2) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. Under this clause (c), 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, by contract or otherwise. (ii) The limited liability company operating agreement of the Seller shall at all times provide that that: (iA) the Seller’s Manager (as defined in its limited liability company agreement) Board of Directors 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 Director shall approve the taking of such action in writing before the taking of such action; , and (iiB) such provision cannot be amended without the prior written consent of the Independent Manager.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, VistraC▇▇▇▇▇ Tire, the Servicer or any Originator or any of their respective other Affiliates.;
(e) The Seller shall conduct its affairs strictly in accordance with its organizational documents and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and board of managers’ meetings appropriate to authorize all limited liability company action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(f) Any employee, consultant or agent of the Seller will be compensated from the Seller’s funds for services provided to the Seller, and to the extent that Seller shares the same officers or other employees as C▇▇▇▇▇ Tire or any Originator (or any other Affiliate thereof), the salaries and expenses relating 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 such common officers and employees. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(fg) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the Seller will not incur any material indirect or overhead expenses for items shared with Vistra C▇▇▇▇▇ Tire or the Servicer any Originator (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; providedit being understood that C▇▇▇▇▇ Tire, that the Servicer may in its capacity as Servicer, shall 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.;
(gh) The Seller’s operating expenses will not be paid by Vistra, the Servicer, C▇▇▇▇▇ Tire or any Originator or any other Affiliate thereof.;
(hi) The Seller will have its own separate stationery;
(j) The Seller’s books and records will be maintained separately from those of VistraC▇▇▇▇▇ Tire, each Originator and any other Affiliate thereof and in a manner such that it will not be difficult or costly to segregate, ascertain or otherwise identify the Servicer assets and liabilities of Seller;
(k) All financial statements of C▇▇▇▇▇ Tire or any Originator or any of their respective other Affiliates.
(i) The Seller’s assets shall not be included in the Affiliate thereof that are 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 to include Seller will disclose that (i) the Seller’s sole business consists of the purchase or acceptance through capital contributions of the Receivables and Related Rights from the Originators and the subsequent retransfer of or granting of a security interest in such Affiliates are Receivables and Related Rights to certain purchasers party to this Agreement, (ii) the Seller is a separate legal entities and entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the Seller’s assets prior to any assets or value in the Seller becoming available to the Seller’s equity holders and credit (iii) the assets of the Seller are not available to satisfy pay creditors of C▇▇▇▇▇ Tire or the debts and obligations of such Affiliates Originators or any other Person and (ii) Affiliates of C▇▇▇▇▇ Tire or the Seller’s assets shall be listed on the Seller’s own separate balance sheet.Originators;
(jl) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of VistraC▇▇▇▇▇ Tire, the Servicer Originators or any Originator or any of their respective other Affiliates.Affiliates thereof;
(km) The Seller will strictly observe corporate formalities in its dealings with VistraC▇▇▇▇▇ Tire, the Servicer Originators or any Originator or any of their respective other AffiliatesAffiliates thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of VistraC▇▇▇▇▇ Tire, the Servicer Originators or any Originator or any of their respective other Affiliates thereof except as permitted by this AgreementAgreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer C▇▇▇▇▇ Tire or any Originator or any of their respective Affiliate thereof (other Affiliates than C▇▇▇▇▇ Tire in its capacity as the Servicer) has independent access.. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of C▇▇▇▇▇ Tire, the Originators or any Subsidiaries or other Affiliates thereof. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(ln) The Seller will maintain arm’s-length relationships with each of VistraC▇▇▇▇▇ Tire, the Servicer or any Originator Originators (and any of their other AffiliatesAffiliates thereof). 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, Seller on the one hand, nor the Servicer C▇▇▇▇▇ Tire or any Originator, on the otherother hand, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other. The Seller Seller, C▇▇▇▇▇ Tire and the Servicer Originators will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single 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 guaranteehave a separate area from C▇▇▇▇▇ Tire and each Originator for its business (which may be located at the same address as such entities) and to the extent that any other such entity has offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall not otherwise be liable, with respect to any obligation bear its fair share of any of its Affiliates.such expenses; and
(p) The To the extent not already covered in paragraphs (a) through (o) above, Seller shall be, at all times, adequately capitalized to engage comply and/or act in accordance with the transactions contemplated in its limited liability company agreement.
(q) provisions of Section 6.4 of the Sale Agreement. 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 following shall be a “Termination Event”:
(i) the Seller, C▇▇▇▇▇ Tire, any Originator or the Servicer shall fail to perform or observe any term, covenant or agreement under this Agreement or any other Transaction Document and, except as otherwise provided herein, such failure, solely to the extent capable of cure, shall continue for 30 days after the earlier of any such Person’s knowledge or notice thereof or (ii) the Seller or the Servicer shall fail to make when due any payment or deposit to be made by it under this Agreement or any other Transaction Document and such failure shall remain unremedied for two Business Days;
(b) C▇▇▇▇▇ Tire (or any Affiliate thereof) shall fail to transfer to any successor Servicer, when required, any rights pursuant to this Agreement that C▇▇▇▇▇ Tire (or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the Seller, the Servicer or any Originator (or any of their respective officers) under or in connection with this Agreement or any other Transaction Document, or any information or report delivered by the Seller, the Servicer or any Originator pursuant to this Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered;
(d) the Seller or the Servicer shall fail to deliver any Information Package when due pursuant to this Agreement, and such failure shall remain unremedied for two Business Days after the earlier of such Person’s knowledge or notice thereof;
(e) this Agreement or any purchase or reinvestment pursuant to this Agreement shall for any reason: (i) cease to create, or the Purchased Interest shall for any reason cease to be, a valid and enforceable first priority perfected undivided percentage ownership or security interest to the extent of the Purchased Interest in each Pool Receivable, the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, or (ii) cease to create with respect to the Pool Assets, or the interest of the Administrator (for the benefit of the Purchasers) with respect to such Pool Assets shall cease to be, a valid and enforceable first priority perfected security interest, free and clear of any Adverse Claim;
(f) the Seller, C▇▇▇▇▇ Tire, the Servicer or any Originator shall generally not pay its debts as such debts become due, shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller, C▇▇▇▇▇ Tire, the Servicer or any Originator seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to substantive consolidation issuesbankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Seller, C▇▇▇▇▇ Tire, the Servicer or any Originator shall take any corporate action to authorize any of the actions set forth above in this paragraph;
(g) (i) the (A) Default Ratio shall exceed 2.0%, (B) Delinquency Ratio shall exceed 4.0%, (ii) the average for three consecutive calendar months of: (A) the Default Ratio shall exceed 1.5%, (B) the Delinquency Ratio shall exceed 3.0%, or (C) the Dilution Ratio shall exceed 10.0% or (iii) Days’ Sales Outstanding exceeds 68 days;
(h) a Change in Control shall occur;
(i) the Purchased Interest shall exceed 100% for two (2) Business Days after the earlier of the Seller’s or Servicer’s knowledge or notice thereof;
(i) the Seller, C▇▇▇▇▇ Tire or any of its Subsidiaries shall fail to pay any principal of or premium or interest on any of its Debt that is outstanding in a principal amount of at least $10,000,000 in the aggregate when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the certificates accompanying agreement, mortgage, indenture or instrument relating to such opinionDebt (whether or not such failure shall have been waived under the related agreement); (ii) any other event shall occur or condition shall exist under any agreement, remain true mortgage, indenture or instrument relating to any such Debt (as referred to in clause (i) of this subsection (j)) and correct shall continue after the applicable grace period, if any, specified in all material respects at all times.such agreement, mortgage, indenture or instrument (whether or not such failure shall have been waived under the related agreement), if the effect of such event or condition is to give the applicable debtholders the right (whether acted upon or not) to accelerate the maturity of such Debt (as
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Cooper Tire & Rubber Co), Receivables Purchase Agreement (Cooper Tire & Rubber Co)
Separate Existence. Each of the Seller The Borrower and the Servicer hereby acknowledges acknowledge that the Purchasers, the Purchaser Agents Lenders and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the SellerBorrower’s identity as a legal entity separate from CB, the Servicer, each Originator, Vistra Originators and their respective other Affiliates. Therefore, from and after the date hereof, each of the Seller Borrower and the Servicer shall take all steps specifically required by this Agreement or reasonably required by the Administrator or any Group Agent to continue the SellerBorrower’s identity as a separate legal entity and to make it apparent to third Persons that the Seller Borrower is an entity with assets and liabilities distinct from those of VistraCB, any Originator, the Servicer, each Originator, Servicer and any other Person, and is not a division of VistraCB, any Originator, the Servicer, the Originators, its or their respective other Affiliates Servicer 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 Borrower and the Servicer shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller Borrower will be a limited liability purpose company whose primary activities are restricted in its limited liability company operating agreement to to: (i) purchasing or otherwise acquiring from any Originator, Originators or CB owning, holding, servicing, granting security interests or selling interests in Pool Assets; , (ii) entering into agreements for the selling and servicing of the Receivables Pool; Pool or for borrowing from banks, financial institutions or similar entities, (iii) to purchase, hold and sell common stock or similar equity interests (“Equity Investments”) and to exercise all voting rights and other incidents of ownership with respect to the Equity Investments, (iv) to use proceeds derived from sale or ownership of Pool Assets and Equity Investments as determined by the board of directors of the Borrower and permitted by the Transaction Documents, and (iiiv) conducting such other activities as it deems necessary or appropriate to carry out its primary activities.;
(b) The Seller Borrower shall not engage in any business or activity, or incur any indebtedness or liabilityliability (including, without limitation, any assumption or guaranty of any obligation of CB, any Originator or any Affiliate thereof), other than as expressly permitted by the Transaction Documents.;
(c) Not less than one independent manager (1) member of the Borrower’s board of directors (the “Independent ManagerDirector”) shall be an individual a natural person (A) who (i) is not, not at the time of initial appointment and has not been at any time during the five-year period prior to his or her appointment as Independent Manager beenfive (5) years preceding such appointment: (1) an equityholder, a direct, indirect or beneficial ownerdirector (other than an independent director), officer, director, employee, affiliatemember (other than a special member or similar capacity), associate manager (other than an independent manager), attorney or supplier partner of VistraCB, the Borrower, the Servicer or any of their Affiliates; (2) a customer of, supplier to or other person who derives more than 1% of its purchases or revenues from its activities with CB, the Borrower, the Servicer or any of their Affiliates Affiliates; (3) a person or other than his entity controlling, controlled by or her service under common control with any such equity holder, partner, member, manager, customer, supplier or other person; or (4) a member of the immediate family of any such equity holder, director, officer, employee, member, manager, partner, customer, supplier or other person and (B) who has (1) prior experience as an independent director for a corporation or an independent director or independent manager of a limited liability company whose charter documents required the unanimous consent of all independent directors or in independent managers thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a similar capacity of petition seeking relief under any such Person); applicable federal or state law relating to bankruptcy and (ii2) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. Under this clause (c), 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, by contract or otherwise. The limited liability company operating agreement of the Seller Borrower shall at all times provide that that: (iA) the SellerBorrower’s Manager (as defined in its limited liability company agreement) board of directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Seller Borrower unless the Manager and the Independent Manager Director shall approve the taking of such action in writing before the taking of such action; , and (iiB) such provision cannot be amended without the prior written consent of the Independent Manager.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the SellerBorrower, VistraCB, any Originator, the Servicer or any Originator or any of their respective other Affiliates.;
(e) The Borrower shall conduct its affairs in accordance with its organizational documents and observe all necessary, appropriate and customary limited liability company formalities, including, but not limited to, holding all regular and special members’ and board of directors’ meetings appropriate to authorize all limited liability company action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(f) Any employee, consultant or agent of the Seller Borrower will be compensated from by the Seller’s funds Borrower for services provided to the SellerBorrower, and to the extent that the Borrower shares the same officers or other employees as CB, the Servicer or any Originator (or any other Affiliate thereof), the salaries and expenses relating 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 such common officers and employees. The Seller Borrower will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Borrower’s funds;
(fg) The Seller Borrower will contract with the Servicer, Servicer to perform for the Seller Borrower all operations required on a daily basis to service the Receivables Pool. The Seller Borrower will pay the Servicer the Servicing Fee pursuant to the Transaction Documentshereto. Except as otherwise permitted by this Agreement, the Seller The Borrower will not incur any material indirect or overhead expenses for items shared with Vistra or CB, the Servicer or any Originator (or any other Affiliate thereof) that are not reflected in the Servicing Fee. To the extent, if any, that the Seller Borrower (or any Affiliate thereof) shares items of expenses not reflected or covered 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; providedit being understood that CB, that the Servicer may in its capacity as Servicer, shall 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 SellerBorrower shall be responsible for payment or reimbursement of all its operating expenses;
(i) The Borrower will conduct its business in its own name;
(j) The Borrower’s books and records will be maintained separately from those of VistraCB, the Servicer, each Originator and any other Affiliate thereof and in a manner such that it will not be difficult or costly to segregate, ascertain or otherwise identify the assets and liabilities of the Borrower;
(k) All financial statements of CB, the Servicer or any Originator or any of their respective other Affiliates.
Affiliate thereof that are consolidated to include the Borrower will disclose that (i) The Sellerthe Borrower is a separate legal entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the Borrower’s assets shall prior to any assets or value in of Borrower becoming available to of Borrower’s equity holders and (ii) the assets of the Borrower are not be included in the consolidated financial statements available to pay creditors of VistraCB, 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 Originators or any other Person and (ii) Affiliates of CB, the Seller’s assets shall be listed on the Seller’s own separate balance sheet.Servicer or any Originators;
(jl) The SellerBorrower’s assets will be maintained in a manner that facilitates their identification and segregation from those of VistraCB, the Servicer Servicer, each Originators or any Originator or any of their respective other Affiliates.Affiliates thereof;
(km) The Seller Borrower will strictly observe corporate limited liability company formalities in its dealings with VistraCB, the Servicer Servicer, any Originators or any Originator or any of their respective other AffiliatesAffiliates thereof, and ensure that funds or other assets of the Seller are Borrower will not be commingled with those of VistraCB, the Servicer Servicer, any Originators or any Originator or any of their respective other Affiliates thereof except as permitted by this AgreementAgreement in connection with servicing the Pool Receivables. The Seller Borrower shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer CB or any Originator or any of their respective Affiliate thereof (other Affiliates than CB in its capacity as the Servicer) has independent access.. The Borrower is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of CB, any Originators or any Subsidiaries or other Affiliates thereof;
(ln) The Seller Borrower will maintain arm’s-length relationships with each of VistraCB, the Servicer or Servicer, any Originator Originators (and any of their other AffiliatesAffiliates thereof). Any Person that renders or otherwise furnishes services to the Seller Borrower will be compensated by the Seller Borrower at market rates for such services it renders or otherwise furnishes to the SellerBorrower. Neither the Seller, Borrower on the one hand, nor CB, the Servicer or any Originator, on the other, Originator 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 Borrower, CB, the Servicer and each Originator will immediately promptly correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single 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.[Reserved]; and
(p) The Seller To the extent not already covered in paragraphs (a) through (o) above, the Borrower shall be, at all times, adequately capitalized to engage comply and/or act in accordance with the transactions contemplated in its limited liability company agreement.
(q) Each provisions of Section 6.4 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 timesSale Agreement.
Appears in 2 contracts
Sources: Receivables Financing Agreement (Cincinnati Bell Inc), Receivables Financing Agreement (Cincinnati Bell Inc)
Separate Existence. Each of the Seller and the Servicer hereby acknowledges that the Purchasers, the Purchaser Agents Purchasers 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 Holdings, FleetCor, the Servicer, each Originator, Vistra Originators 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 or reasonably required by the Administrator or any Purchaser Agent 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 VistraHoldings, the ServicerFleetCor, each Originator, any Originator and any other Person, and is not a division of VistraHoldings, the ServicerFleetCor, the Originators, its or their respective other Affiliates any Originator 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 Datethat:
(a) The Seller will be a limited liability company whose primary activities are restricted in its limited liability company operating agreement to to: (i) purchasing or otherwise acquiring from any Originatorthe Originators, 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 liabilityliability (including, without limitation, any assumption or guaranty of any obligation of Holdings, FleetCor, any Originator or any Affiliate thereof), other than as expressly permitted by the Transaction Documents.;
(ci) Not less than one independent manager member of the Seller’s Board of Directors (the “Independent ManagerDirector”) shall be an individual a natural person (A) who (i) is not, not at the time of initial appointment and has not been at any time during the five-year period prior to his or her appointment as five (5) years preceding such appointment: (1) an equityholder, director (other than the Independent Manager been, a direct, indirect or beneficial ownerDirector), officer, employee, member, manager, attorney or partner of Holdings, FleetCor, Seller or any of their Affiliates; (2) a customer of, supplier to or other person who derives more than 1% of its purchases or revenues from its activities with Holdings, FleetCor, Seller or any of their Affiliates; (3) a person or other entity controlling, controlled by or under common control with any such equity holder, partner, member, manager customer, supplier or other person; or (4) a member of the immediate family of any such equity holder, director, officer, employee, affiliatemember, associate manager, partner, customer, supplier or supplier of Vistra, the Servicer or any of its or their Affiliates other person and (other than his or her service B) who has (1) prior experience as an independent director for a corporation or an independent manager of a limited liability company whose charter documents required the unanimous consent of all independent director or in independent managers thereof before such corporation could consent to the institution of bankruptcy or insolvency proceedings against it or could file a similar capacity of petition seeking relief under any such Person); applicable federal or state law relating to bankruptcy and (ii2) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. Under this clause (c), 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, by contract or otherwise. (ii) The limited liability company operating agreement of the Seller shall at all times provide that that: (iA) the Seller’s Manager (as defined in its limited liability company agreement) Board of Directors 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 Director shall approve the taking of such action in writing before the taking of such action; , and (iiB) such provision cannot be amended without the prior written consent of the Independent Manager.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, VistraHoldings, the Servicer or FleetCor, any Originator or any of their respective other Affiliates.;
(e) The Seller shall conduct its affairs strictly in accordance with its organizational documents and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and board of directors’ meetings appropriate to authorize all limited liability company action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(f) Any employee, consultant or agent of the Seller will be compensated from the Seller’s funds for services provided to the Seller, and to the extent that Seller shares the same officers or other employees as Holdings, FleetCor or any Originator (or any other Affiliate thereof), the salaries and expenses relating 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 such common officers and employees. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(fg) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra Holdings, FleetCor or the Servicer any Originator (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; providedit being understood that FleetCor, that the Servicer may in its capacity as Servicer, shall 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.;
(gh) The Seller’s operating expenses will not be paid by Vistra, the Servicer, FleetCor or any Originator or any other Affiliate thereof.;
(hi) The Seller will have its own separate stationery;
(j) The Seller’s books and records will be maintained separately from those of VistraFleetCor, each Originator and any other Affiliate thereof and in a manner such that it will not be difficult or costly to segregate, ascertain or otherwise identify the Servicer assets and liabilities of Seller;
(k) All financial statements of Holdings, FleetCor or any Originator or any of their respective other Affiliates.
(i) The Seller’s assets shall not be included in the Affiliate thereof that are 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 to include Seller will disclose that (i) the Seller’s sole business consists of the purchase or acceptance through capital contributions of the Receivables and Related Rights from the Originators and the subsequent retransfer of or granting of a security interest in such Affiliates are Receivables and Related Rights to certain purchasers party to this Agreement, (ii) the Seller is a separate legal entities and entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the Seller’s assets prior to any assets or value in the Seller becoming available to the Seller’s equity holders and credit (iii) the assets of the Seller are not available to satisfy pay creditors of FleetCor or the debts and obligations of such Affiliates Originators or any other Person and (ii) Affiliates of FleetCor or the Seller’s assets shall be listed on the Seller’s own separate balance sheet.Originators;
(jl) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of VistraHoldings, FleetCor, the Servicer Originators or any Originator or any of their respective other Affiliates.Affiliates thereof;
(km) The Seller will strictly observe corporate formalities in its dealings with VistraHoldings, FleetCor, the Servicer Originators or any Originator or any of their respective other AffiliatesAffiliates thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of VistraHoldings, FleetCor, the Servicer Originators or any Originator or any of their respective other Affiliates thereof except as permitted by this AgreementAgreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which VistraHoldings, the Servicer FleetCor or any Originator or any of their respective Affiliate thereof (other Affiliates than FleetCor in its capacity as the Servicer) has independent access.. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of Holdings, FleetCor, the Originators or any Subsidiaries or other Affiliates thereof. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(ln) The Seller will maintain arm’s-length relationships with each of VistraHoldings, FleetCor, the Servicer or any Originator Originators (and any of their other AffiliatesAffiliates thereof). 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, Seller on the one hand, nor the Servicer FleetCor or any Originator, on the otherother hand, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other. The Seller Seller, Holdings, FleetCor and the Servicer Originators will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single 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 guaranteehave a separate area from Holdings, FleetCor and each Originator for its business (which may be located at the same address as such entities) and to the extent that any other such entity have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall not otherwise be liable, with respect to any obligation bear its fair share of any of its Affiliates.such expenses; and
(p) The To the extent not already covered in paragraphs (a) through (o) above, Seller shall be, at all times, adequately capitalized to engage comply and/or act in accordance with the transactions contemplated in its limited liability company agreement.
(q) Each provisions of Section 6.4 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 timesSale Agreement.
Appears in 2 contracts
Sources: Receivables Purchase Agreement, Receivables Purchase Agreement (Fleetcor Technologies Inc)
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 Such Originator 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.times:
(i) The Seller’s assets shall maintain its deposit account or accounts separate from those of the Buyer and ensure that its funds will not be included in diverted to the consolidated financial statements Buyer nor will such funds be commingled with the funds of Vistrathe Buyer (other than funds deposited to a Lock-Box Account, 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 which funds may be commingled for a period not exceeding two (i2) 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 Business Days);
(ii) to 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 extent that facilitates their identification and segregation from those of Vistra, the Servicer or it shares 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 officers or other assets of employees with the Seller are not commingled with those of VistraBuyer, 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 and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among it and the Buyer, and such Originator and the Buyer shall bear their respective fair share of the salary and benefit costs associated with all such common officers and employees, if any.;
(niii) No Affiliate to the extent that it jointly contracts with the Buyer to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly between it and the Buyer, and it and the Buyer shall bear their fair shares of such costs. To the extent that it contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of the Seller shall advance funds to, or guaranty debts ofBuyer, the Seller, except as otherwise provided herein costs incurred in so doing shall be fairly allocated between it and the Buyer in proportion to the benefit of the goods or in the other Transaction Documents; services each is provided, that an Affiliate and the Originators and the Buyer shall bear their respective fair shares of the Seller may provide funds to the Seller in connection with its capitalization.such costs;
(oiv) The Seller shall not guaranteeenter into all material transactions with the Buyer, whether currently existing or hereafter entered into, only on an arm’s length basis, including the tax effects of such transactions, it being understood 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 agreed that the transactions contemplated in its limited liability company agreement.the Transaction Documents meet the requirements of this clause (iv);
(qv) Each maintain office space that is physically segregated from the office space of the Seller Buyer (but which may be located at the same address as the Buyer) and, to the extent that it and the Servicer will take 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;
(vi) take, or refrain from taking, as the case may be, all other actions as that are necessary on its part to ensure that the facts and assumptions set forth be taken or not to be taken in order to comply with this Section 5.1;
(vii) cause each Affiliate included in the opinion issued by Sidley Austin LLP, Parent Group to conduct its business in a manner designed not to mislead third parties as counsel for to the Seller, in connection with this Agreement relating to substantive consolidation issues, and separate identity of the Buyer; and
(viii) cause each Affiliate included in the certificates accompanying Parent Group to comply with each of the factual assumptions such opinion, remain that each such assumption contained in the legal opinion of King & Spalding delivered pursuant to the Section 6.1 of the Receivables Purchase Agreement is true and correct in all material respects at all timescorrect.
Appears in 1 contract
Separate Existence. Each of the Seller and the Servicer hereby acknowledges that the Purchasers, the Purchaser Agents and the Administrator Agent are entering into the transactions contemplated by this the Agreement and the other Transaction Documents in reliance upon the each Seller’s identity as a legal entity separate from the each Servicer, Manitowoc and each Originator, Vistra and their respective other Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer shall at all times take all reasonable steps specifically required by this Agreement to continue the each Seller’s identity as a separate legal entity and to make it apparent to third Persons that the such Seller is an entity with assets and liabilities distinct from those of Vistra, the any Servicer, each OriginatorManitowoc, any Originator and any other Person, and is not a division of Vistra, the any Servicer, the OriginatorsManitowoc, its or their respective other Affiliates or any Originator and any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants covenant set forth hereinin paragraph (a) of this Exhibit IV, 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 Datethat:
(ai) The Each Seller will be a limited liability purpose company whose primary sole activities are restricted in its limited liability company agreement (or its other organizational documents serving a similar purpose) to (i) purchasing or otherwise acquiring Receivables from any Originatorthe Originators, owning, holding, granting security interests or selling interests in Pool Assets; (ii) entering into agreements for the servicing of such Receivables, selling and servicing of pledging or assigning, as applicable, such Receivables (and related Pool Assets) as contemplated by the Receivables Pool; Agreement and (iii) conducting such other activities as it deems necessary or appropriate to carry out its primary activities.purpose;
(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.
(cii) Not less than one independent manager member of each Seller’s Board of Directors (the “Independent ManagerDirector”) shall be an individual who (iA) is not, and has not at any time during the five-year period (1) 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 experience as an independent manager Independent Director for a corporation or in limited liability company whose organizational documents required the unanimous consent of all Independent Directors thereof before such entity could consent to the institution of bankruptcy or insolvency proceedings against it or could file a similar capacity of petition seeking relief under any such Person); applicable federal or state law relating to bankruptcy and (ii2) has at least three years of employment experience and is currently employed with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities and who are not (except as members of a Seller’s Board of Directors) direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of any Seller, Manitowoc or any Originator or any of their respective Affiliates (B) is not, and has not been for a period of five years prior to his or her appointment as an Independent Director of such Seller: (1) a director, officer, employee, partner, manager, attorney, supplier or customer of Manitowoc or any Affiliate thereof, (2) a stockholder (whether direct, indirect or beneficial), associate, advisor or supplier of Manitowoc or any Affiliate thereof, (3) a person related to any person referred to in clauses (1) or (2) above, (4) a person or other entity controlling or under common control with any such stockholder, partner, manager, customer, supplier, employee, officer or director or (5) a trustee, conservator or receiver for any member of Manitowoc or any Affiliate thereof (it being understood that, as used in this definition, “control” means the possession directly or indirectly of the power to direct or cause the direction of management policies or activities of a person or entity whether through ownership of voting securities, by contract or otherwise); provided, however, that an individual shall not be deemed to be ineligible to be an Independent Director solely because such individual serves or has served in the capacity of an “independent director” or similar capacity for special purpose entities formed by Manitowoc or any of its Affiliates and (C) is agreed to by the Agent. The limited liability company agreement (or other organizational documents serving a similar purpose) of the each Seller shall at all times provide that (i) the that such Seller’s Manager (as defined in its limited liability company agreement) Board of Directors shall not approve, or take any other action to cause the filing of, commencement of a voluntary bankruptcy petition case or other proceeding with respect to such Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for such Seller unless the Manager and in each case the Independent Manager Director shall approve the taking of such action in writing before prior to the taking of such action; , (ii) for the same definition of “Independent Director” as used herein and (iii) that the provisions required by clauses (i) and (ii) such provision above cannot be amended without the prior written consent of each Independent Director and the Agent. The Independent Manager.Director’s fiduciary duty shall be to such Seller (and its creditors) and not to such Seller’s members or other equityholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of a Seller, there shall be selected a replacement Independent Director who (x) shall not be an individual within the proscriptions of the first sentence of this subparagraph (ii) or any individual who has any other type of professional relationship with such Seller, Manitowoc or any Originator or any of their respective Affiliates or any management personnel of any such Person or Affiliate and (y) shall be acceptable to the Agent;
(diii) The No Independent Manager Director 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.Affiliate thereof;
(eiv) Any employee, consultant or agent of the any Seller will be compensated from the such Seller’s funds own bank accounts for services provided to such Seller except as provided herein in respect of the SellerServicing Fee. The No 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.Receivables, which servicer will be fully compensated for its services to such Seller by payment of the Servicing Fee;
(fv) The No 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 between such Seller and the Servicer (Originators or any other Affiliate thereof) that thereof which are not reflected in the Servicing FeeFee or otherwise appropriately allocated between such Persons based on usage in accordance with the next sentence. To the extent, if any, that any Seller and the Seller (Originators or any Affiliate thereof) shares thereof share items of expenses not reflected in the Servicing Fee or the manager’s feeFee, 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, it being understood that the Servicer may Manitowoc shall pay all (or any portion of) the expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legalincluding, agency without limitation, legal and other fees.;
(gvi) The No Seller’s operating expenses will not be paid by Vistra, the Servicer, any Originator or any other Affiliate thereof.thereof unless such Seller shall have agreed in writing with such Person promptly to reimburse such Person for any such payments;
(hvii) The Each Seller will have its own separate mailing address and stationery;
(viii) Each Seller’s books and records will be maintained separately from those of Vistrathe Servicers, Manitowoc and the Servicer Originators or any respective Affiliate thereof;
(ix) Any financial statements of any Servicer, Manitowoc, any Originator or any of their respective other Affiliates.
(i) The Seller’s assets shall not be included in the Affiliate thereof which are 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 to include a Seller will contain detailed notes clearly stating that (i) such Affiliates are Seller is a separate legal entities corporate entity and the has sold and assigned ownership interests in such 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.accounts receivable;
(jx) The Each Seller’s assets will be maintained in a manner that facilitates their identification identifies and segregation segregates them from those of Vistrathe Servicers, Manitowoc, the Servicer or any Originator or Originators and any of their respective other Affiliates.;
(kxi) The Each Seller will strictly observe corporate limited liability company formalities in its dealings with Vistrathe Servicers, Manitowoc, the Servicer or Originators and any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistrathe Servicers, Manitowoc, the Servicer Originators or any Originator or any of their respective other Affiliates except as permitted by this AgreementAffiliate thereof. The No Seller shall not maintain joint bank accounts or other depository accounts to which Vistrathe Servicers, Manitowoc, the Servicer Originators or any respective Affiliate thereof (other than Manitowoc or any Affiliate thereof in their capacities as Servicers) has independent access. No Seller’s funds will at any time be pooled with any funds of the Servicers, Manitowoc, the Originators or any respective Affiliate thereof;
(xii) Each Seller shall pay to the Originators the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers such Seller and any Affiliate thereof, but such Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Servicers, Manitowoc, the Originators or any respective Affiliate thereof; and
(xiii) Each Seller will maintain arm’s length relationships with the Servicers, Manitowoc, the Originators and any respective Affiliate thereof and, except as contemplated by the Transaction Documents, will have no other dealings, contractual, financial or otherwise, among themselves. 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 Affiliate thereof that renders or otherwise furnishes services to the any Seller will be compensated by the such Seller at market rates for such services it renders or otherwise furnishes to the Sellerservices. Neither the No Seller, on the one hand, nor the Servicer Originator or any Originator, on the other, Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other. 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 Each 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 cause the facts and assumptions relating to such Seller, and each Servicer shall cause the facts and assumptions relating to such Servicer, in each case set forth in the opinion issued opinions rendered by Sidley Austin ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, as counsel for the Seller▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLC, in connection with this Agreement ▇▇▇▇▇ LLP, Bond ▇▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ and relating to substantive true sale and non-consolidation issuesmatters, and in the officer’s certificates accompanying referred to in such opinionopinions, to remain true and correct in all material respects at all times.
Appears in 1 contract
Separate Existence. Each of the Seller and the Servicer WESCO hereby acknowledges that the Purchasers, the Purchaser Agents Agents, the Administrator and the Administrator Liquidity Providers 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 WESCO and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer WESCO shall take all steps specifically required by this Agreement or reasonably required by the Administrator 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, WESCO and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsWESCO, 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 WESCO shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited liability company purpose corporation whose primary activities are restricted in its limited liability company agreement to certificate of incorporation to: (i) purchasing or otherwise acquiring from any Originatorthe Originators, 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 member of the Seller’s Board of Directors (the “Independent ManagerDirector”) 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 ownerstockholder, officer, director, employee, affiliate, associate or supplier of Vistra, the Servicer WESCO 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 securitiesAffiliates. The limited liability company agreement certificate of incorporation of the Seller shall at all times provide that that: (i) the Seller’s Manager (as defined in its limited liability company agreement) Board of Directors 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 Director 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.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer WESCO or any Originator or any of their respective other Affiliates.Affiliate thereof;
(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, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(f) The Seller will contract with the Servicer, 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 . The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer WESCO (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, it being understood that the Servicer may WESCO shall 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 WESCO or any other Affiliate thereof.;
(h) All of the Seller’s business correspondence and other communications shall be conducted in the Seller’s own name and on its own separate stationery;
(i) The Seller’s books and records will be maintained separately from those of Vistra, the Servicer or WESCO and any Originator or any of their respective other Affiliates.Affiliate thereof;
(ij) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer WESCO or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that that: (i) such Affiliates are separate legal entities and the Seller’s assets and credit are not available to satisfy the debts and obligations a special purpose corporation exists as a Subsidiary of such Affiliates or any other Person WESCO, and (ii) the Seller’s Originators have sold receivables and other related assets shall be listed on the Seller’s own separate balance sheet.to such special purpose Subsidiary that, in turn, has sold undivided interests therein to certain financial institutions and other entities;
(jk) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer WESCO or any Originator or any of their respective other Affiliates.Affiliate thereof;
(kl) The Seller will strictly observe corporate formalities in its dealings with Vistra, the Servicer WESCO or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer WESCO or any Originator or any of their respective other Affiliates Affiliate thereof except as permitted by this AgreementAgreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer WESCO or any Originator or any of their respective Affiliate thereof (other Affiliates than WESCO in its capacity as the Servicer) has independent access.. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of WESCO or any Subsidiary or other Affiliate of WESCO. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(lm) The Seller will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator WESCO (and any of their other AffiliatesAffiliate thereof). 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, Seller nor the Servicer or any Originator, on the other, WESCO 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 WESCO will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity.; and
(mn) None of Vistra, the Servicer or other Originator WESCO shall not pay the salaries of Seller’s employees, if any.. Each of the following shall be a “Termination Event”:
(na) No Affiliate of the Seller shall advance funds to, or guaranty debts of, (dddd) (i) the Seller, WESCO, any Originator or the Servicer shall fail to perform or observe any term, covenant or agreement under this Agreement or any other Transaction Document and, except as otherwise provided herein herein, such failure shall continue for (A) 5 days after knowledge or notice thereof for any clause or provision of Sections 1(j)(i), 1(j)(iii), or 1(j)(viii) or Sections 2(i)(i), 2(i)(ii), 2(i)(iii), 2(i)(v), 2(i)(vi), 2(i)(xi) or 2(i)(xiv) of Exhibit IV to this Agreement (B) 10 days after knowledge or notice thereof for any clause or provision of this Agreement not referenced in the other Transaction Documents; providedclause (a)(i)(A) above, that an Affiliate of (ii) the Seller may provide funds or the Servicer shall fail to make when due any payment or deposit to be made by it under this Agreement and such failure shall continue unremedied for onetwo Business DayDays , (iii) WESCO shall resign as Servicer, and no successor Servicer reasonably satisfactory 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 Administrator and the Majority Purchasers shall have been appointed or (iv) the Seller, WESCO, any Originator or the Servicer will take such other actions as are necessary on its part shall fail to ensure that the facts and assumptions perform or observe any term, covenant set forth in the opinion issued Sections 1(bb) or (cc) or Sections 2(t) or (u) of Exhibit III or Sections 1(r) or 2(j) of Exhibit IV to this Agreement;
(b) (eeee) WESCO (or any Affiliate thereof) shall fail to transfer to any successor Servicer when required any rights pursuant to this Agreement that WESCO (or such Affiliate) then has as Servicer;
(c) (ffff) any representation or warranty made or deemed made by Sidley Austin LLP, as counsel for the Seller, WESCO or any Originator (or any of their respective officers) under or in connection with this Agreement relating or any other Transaction Document, or any information or report delivered by the Seller, WESCO or any Originator or the Servicer pursuant to substantive consolidation issuesthis Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered (unless such representation or warranty relates solely to one or more specific Pool Receivables and the relevant Originator, Seller or the Servicer makes a payment with respect to such Pool Receivable to the extent required under the Purchase and Sale Agreement or otherwise under any other Transaction Document), and shall remain incorrect or untrue for 5 days after notice to the Seller or the Servicer of such inaccuracy;
(d) (gggg) the Seller or the Servicer shall fail to deliver the Information Package or Daily Report pursuant to this Agreement, and such failure shall remain unremedied for two days; (e) (hhhh) this Agreement or any Purchase or reinvestment pursuant to this Agreement shall for any reason: (i) cease to create, or the Purchased Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage ownership or security interest to the extent of the Purchased Interest in each Pool Receivable, the certificates accompanying Related Security and Collections with respect thereto, free and clear of any Adverse Claim, or (ii) cease to create with respect to the Pool Assets, or the interest of the Administrator (for the benefit of the Purchasers) with respect to such opinionPool Assets shall cease to be, remain true a valid and correct in all material respects at all times.enforceable first priority perfected security interest, free and clear of any Adverse Claim;
Appears in 1 contract
Sources: Receivables Purchase Agreement (Wesco International Inc)
Separate Existence. Each of The Performance Guarantor will take all reasonable steps (including, without limitation, all steps necessary or that the Seller Administrative Agent may from time to time reasonably request) to maintain the Seller’s, the Transferor’s 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 SellerIssuer’s identity as a separate legal entity from it and to make it apparent manifest to third Persons parties that each of the Seller Transferor and the Issuer is an entity with assets and liabilities distinct from those of Vistra, the Servicer, it and each Originator, and any of its other Person, and is not a division of Vistra, the Servicer, the Originators, its or their respective other Affiliates or any other PersonAffiliates. Without limiting the generality of the foregoing and in addition to and consistent with foregoing, 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 DatePerformance Guarantor shall:
(ai) The Seller will be a limited liability company whose primary activities are restricted cause the board of directors or managers of the Transferor to at all times have at least one (1) member of which is an Independent Director;
(ii) cause the Transferor to conduct its affairs strictly in accordance with its limited liability company agreement and to observe all necessary, appropriate and customary company formalities as a distinct entity, and ensure that all company actions relating to (iA) purchasing the selection, maintenance or otherwise acquiring from replacement of any OriginatorIndependent Director, owning(B) its dissolution or liquidation or (C) the initiation of, holdingparticipation in, granting security interests acquiescence in or selling interests in Pool Assets; consent to any bankruptcy, insolvency, reorganization or similar proceeding of it are duly authorized by unanimous vote of its board of directors or managers (ii) entering into agreements for including the selling and servicing of the Receivables Pool; and Independent Directors);
(iii) conducting such other activities as maintain its books and records separate from those of the Transferor and the Issuer and maintain records of all intercompany debits and credits and transfers of funds made by it deems necessary on the Transferor’s or appropriate to carry out its primary activities.the Issuer’s behalf;
(biv) 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 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 contemplated under the Transaction Documents, including legal, agency and other fees.
(g) The Seller’s operating expenses will not be paid by Vistra, prevent the Servicer, any Originator or any other Affiliate thereof.
(h) The Seller’s books and records will be maintained separately from those commingling 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 Vistrathe Transferor and the Issuer, the Servicer or any Originator or any of their respective other Affiliates except as permitted by this Agreement. The Seller shall and 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 Transferor or the decisions Issuer is an account party, into which the Transferor or actions respecting the daily business and affairs of Issuer makes deposits or from which the other. The Seller and Transferor or the Servicer will immediately correct any known misunderstanding Issuer has the power to make withdrawals except as otherwise contemplated under the Transaction Documents with respect to the foregoingIssuer’s or the Servicer’s administration of Collections on the Receivables;
(v) not enter into or permit to exist any transaction (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with the Transferor or the Issuer which is on terms that are less favorable to it than those that might be obtained in an arm’s length transaction at the time from Persons who are not Affiliates and which is not evidenced by or pursuant to a written agreement;
(vi) not pay the operating expenses and liabilities of the Transferor or the Issuer;
(vii) conduct its business separate and distinct from the offices of, or any space occupied by, the Transferor or the Issuer and allocate fairly with the Transferor and the Issuer any overhead, if relevant, for shared office space or business facilities or equipment;
(viii) conduct its business and act solely in its own name, through its own officials or representatives where relevant, and they will not operate hold the Transferor or purport to operate the Issuer out as an integrated economic unit a “division” or “part” of it (although litigation may be filed with respect to each other or the Collections in their dealing with any other entity.the name of the Servicer);
(mix) None have stationery and other business forms and a telephone number separate from that of Vistra, the Servicer Transferor or other Originator shall pay the salaries of Seller’s employees, if any.Issuer;
(nx) No Affiliate cause any financial statements consolidated with those of the Seller shall advance funds toTransferor or the Issuer to state that the Transferor’s and Issuer’s business consists of the purchase of Receivables from it and that each of the Transferor and the Issuer is a separate legal entity with its own separate creditors who, in any liquidation of the Transferor or guaranty debts ofthe Issuer, will be entitled to be satisfied out of the Seller, except as otherwise provided herein Transferor or the Issuer’s assets prior to any value in the other Transaction Documents; provided, that an Affiliate of Transferor or the Seller may provide funds Issuer becoming available to the Seller in connection with its capitalization.Transferor’s or the Issuer’s equity holders; and
(oxi) 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 take 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 reasonably necessary on its part to ensure that operate its business and perform its obligations under the facts and Transaction Documents in a manner consistent with the factual assumptions set forth described in the opinion issued by legal opinions with respect to non-consolidation and true sale matters of Sidley Austin LLPLLP delivered to the Indenture Trustee, as counsel for the Seller, in connection with this Agreement relating Administrative Agent and the Managing Agents pursuant to substantive consolidation issues, and in Transaction Documents on the certificates accompanying such opinion, remain true and correct in all material respects at all timesInitial Closing Date to the extent applicable to it.
Appears in 1 contract
Sources: Performance Guaranty and Parent Undertaking Agreement (United States Cellular Corp)
Separate Existence. Each of the 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 actions required by this Agreement to continue maintain the SellerBuyer’s identity status as a separate legal entity and to make it apparent entity, including, without limitation, (i) not holding the Buyer out to third Persons that the Seller is parties as an entity other than 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 AssetsSeller’s Affiliates; (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 holding itself out to be responsible for the debts any Indebtedness or other liability of the Buyer or, other or than by reason of owning equity interests of the Buyer, for any 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 relating 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.
Buyer; (miii) None of Vistra, preparing separate financial statements for the Servicer or other Originator shall pay the salaries of Seller’s employees, if any.
Buyer; (niv) 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 taking such other actions as are necessary on its part to ensure that all corporate procedures required by its and the facts Buyer’s respective constituent documents are duly and assumptions set forth validly taken; (v) keeping correct and complete records and books of account and minutes; and (vi) not acting in any manner that could foreseeably mislead others with respect to the Buyer’s separate identity. In addition to the foregoing, the Seller shall take the following actions:
(i) The Seller shall maintain corporate records, books of account, deposit accounts, and accounts separate from those of the Buyer.
(ii) The Seller shall maintain a principal executive office and administrative office through which its business is conducted separate from those of the Buyer. To the extent that the Seller and the Buyer have offices in the opinion issued 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.
(iii) The resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by Sidley Austin LLPthe Seller as official records.
(iv) The Seller shall ensure that all material transactions between the Seller and the Buyer shall be only on an arm’s-length basis.
(v) The Seller shall keep its assets and its liabilities wholly separate from those of the Buyer.
(vi) The Seller shall not mislead third parties by conducting or appearing to conduct business on behalf of Buyer or expressly or impliedly representing or suggesting that the Seller is liable or responsible for any Indebtedness of the Buyer or that the assets of the Seller are available to pay the creditors of the Buyer.
(vii) The Seller shall at all times have stationery and other business forms and a mailing address and telephone number separate from those of the Buyer.
(viii) The Seller shall at all times limit its transactions with the Buyer only to those expressly permitted under this Agreement, the Buyer’s limited liability company agreement or any Sale Document.
(ix) The Seller shall take or refrain from taking, as counsel applicable, each of the activities specified or assumed in the MBRM Opinion, upon which the conclusions expressed therein are based.
(x) The Seller shall ensure that, to the extent that it shares the same persons as officers or other employees as the Buyer, the salaries of and the expenses related to providing benefits to such officers or employees shall be fairly allocated among the two entities, and each entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees.
(xi) The Seller shall ensure that, to the extent that it jointly contracts with the Buyer 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 Borrower contracts or does business with vendors or service providers when the goods and services provided are partially for the Sellerbenefit of any other person, the costs incurred in connection with this Agreement relating so doing shall be fairly allocated to substantive consolidation issuesor among such entities for whose benefit the goods and services are provided, and in the certificates accompanying each such opinion, remain true and correct in all material respects at all timesentity shall bear its fair share of such costs.
Appears in 1 contract
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 any Originator, the Servicer, each Originator, Vistra ▇▇▇▇▇ Corning 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 or reasonably required by the Administrator, any Purchaser Agent or any Purchaser 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▇▇▇▇▇ Corning, the ServicerOriginators, each Originator, the Servicer and any other Person, and is not a division of Vistra▇▇▇▇▇ Corning, the Originators, 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 ▇▇▇▇▇ Corning shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited liability company whose primary activities are restricted in its limited liability company agreement to LLC Agreement to: (i) purchasing or otherwise acquiring from any the Originator, owning, holding, granting security interests or selling interests in Pool Assets; , (ii) entering into agreements for the selling selling, servicing and servicing financing of the Receivables Pool; Pool (including the Transaction Documents), 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 activityactivity except as set forth in this Agreement nor, or incur any indebtedness or liability, liability other than as expressly permitted by the Transaction Documents.;
(ci) Not less than one independent manager member of the Seller’s board of directors (the “Independent ManagerDirector”) shall be an individual a natural person (A) who (i) is not, and has not been at any time during the five-year period prior to his or her appointment as Independent Manager been, five (5) years preceding such person’s initial appointment: (1) a direct, indirect or beneficial ownerstockholder, equityholder, officer, directordirector (other than the Independent Director), employee, member, manager, attorney, partner, affiliate, associate or supplier of VistraSeller, ▇▇▇▇▇ Corning, any Originator, the Servicer or any of its or their respective Affiliates (other than his or her service as an independent manager or in a similar capacity of any such Personthe “▇▇▇▇▇ Corning Group”); 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 indirect stock ownership of any portion of) the expenses relating to the preparation, negotiation, execution and delivery member of the Transaction Documents, including legal, agency and other fees.
(g) The Seller’s operating expenses will not be paid ▇▇▇▇▇ Corning Group by Vistra, the Servicer, any Originator person through a mutual fund 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 similar diversified investment pool shall not be included in disqualify such person from being an Independent Director unless such person maintains direct or indirect control of 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 investment decisions of such Affiliates mutual fund 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.similar diversified investment pool,
Appears in 1 contract
Separate Existence. Each of the Seller and the Servicer York hereby acknowledges that the Purchasers, the Purchaser Agents Agents, the Administrator and the Administrator Liquidity Providers are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from the Servicer, each Originator, Vistra York and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer York shall take all steps specifically required by this the Agreement or reasonably required by the Administrator to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of Vistra, the Servicer, each Originator, York and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsYork, 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 York shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited purpose limited liability company whose primary activities are restricted in its limited liability company agreement to to: (i) purchasing or otherwise acquiring from any Originatorthe Originators, 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 member of the Seller's Board of Directors (the “"Independent Manager”Director") 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 ownerstockholder, officer, director, employee, affiliate, associate or supplier of Vistra, the Servicer York 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 securitiesAffiliates. The limited liability company agreement of the Seller shall at all times provide that that: (i) the Seller’s Manager (as defined in its limited liability company agreement) 's Board of Directors 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 Director 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.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer York or any Originator or any of their respective other Affiliates.Affiliate thereof;
(e) Any employee, consultant or agent of the Seller will be compensated from the Seller’s 's funds for services provided to the Seller. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller's funds;
(f) The Seller will contract with the Servicer, 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 DocumentsAgreement. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer York (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 '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, it being understood that the Servicer may York shall 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 's operating expenses will not be paid by Vistra, the Servicer, any Originator York or any other Affiliate thereof.;
(h) All of the Seller's business correspondence and other communications shall be conducted in the Seller's own name and on its own separate stationery;
(i) The Seller’s 's books and records will be maintained separately from those of Vistra, the Servicer or York and any Originator or any of their respective other Affiliates.Affiliate thereof;
(ij) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer York or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that that: (i) such Affiliates are separate legal entities and the Seller’s assets and credit are not available to satisfy the debts and obligations a special purpose limited liability company exists as a Subsidiary of such Affiliates or any other Person York, and (ii) the Seller’s Originators have sold receivables and other related assets shall be listed on the Seller’s own separate balance sheet.to such special purpose Subsidiary that, in turn, has sold undivided interests therein to certain financial institutions and other entities;
(jk) The Seller’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer York or any Originator or any of their respective other Affiliates.Affiliate thereof;
(kl) The Seller will strictly observe corporate organizational formalities in its dealings with Vistra, the Servicer York or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer York or any Originator or any of their respective other Affiliates Affiliate thereof except as permitted by this Agreementthe Agreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer York or any Originator or any of their respective Affiliate thereof (other Affiliates than York in its capacity as the Servicer) has independent access.. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of York or any Subsidiary or other Affiliate of York. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(lm) The Seller will maintain arm’sarm's-length relationships with each of Vistra, the Servicer or any Originator York (and any of their other AffiliatesAffiliate thereof). 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, Seller nor the Servicer or any Originator, on the other, York 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 York will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity.; and
(mn) None of Vistra, the Servicer or other Originator York shall not pay the salaries of Seller’s 's employees, if any.. EXHIBIT V TERMINATION EVENTS Each of the following shall be a "Termination Event":
(ni) No Affiliate of the Seller shall advance funds to, or guaranty debts of, the Seller, York, any Originator or the Servicer shall fail to perform or observe any term, covenant or agreement under the Agreement or any other Transaction Document and, except as otherwise provided herein herein, such failure shall continue for more than 15 Business Days after knowledge or notice thereof, (ii) the Seller or the Servicer shall fail to make when due any payment or deposit to be made by it under the Agreement and such failure shall continue unremedied for one Business Day or (iii) York shall resign as Servicer, and no successor Servicer reasonably satisfactory to the Administrator and the Majority Purchasers shall have been appointed;
(b) York (or any Affiliate thereof) shall fail to transfer to any successor Servicer when required any rights pursuant to the Agreement that York (or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the Seller, York or any Originator (or any of their respective officers) under or in connection with the Agreement or any other Transaction DocumentsDocument, or any information or report delivered by the Seller, York or any Originator or the Servicer pursuant to the Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any respect when made or deemed made or delivered; provided, that an Affiliate however, if the violation of this paragraph (c) by the Seller, any Originator or the Servicer may be cured without any potential or actual detriment to the Issuer, the Administrator or any Program Support Provider, the Seller, such Originator or the Servicer, as applicable, shall have 15 Business Days from the earlier of (i) such Person's actual knowledge of such failure and (ii) notice to such Person of such failure to so cure any such violation before a Termination Event shall occur so long as such Person is diligently attempting to effect such cure;
(d) the Seller or the Servicer shall fail to deliver the Information Package pursuant to the Agreement, and such failure shall remain unremedied for two Business Days;
(e) the Agreement or any purchase or reinvestment pursuant to the Agreement shall for any reason: (i) cease to create, or the Purchased Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage ownership or security interest to the extent of the Seller may provide funds Purchased Interest in each Pool Receivable, the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, or (ii) cease to create with respect to the Seller in connection Pool Assets, or the interest of the Administrator (for the benefit of the Purchasers) with its capitalization.respect to such Pool Assets shall cease to be, a valid and enforceable first priority perfected security interest, free and clear of any Adverse Claim;
(of) The Seller the Seller, York or any Originator shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller, York or any Originator seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Seller, York or any Originator shall take any organizational action to authorize any of the actions set forth above in this paragraph;
(i) (A) the Default Ratio shall exceed 4.00%, or (B) the Delinquency Ratio shall exceed 13.00% or (c) the Current Days' Sales Outstanding shall exceed 80 days or (ii) the average for three consecutive Fiscal Months of (A) the Default Ratio shall exceed 3.50%, (B) the Delinquency Ratio shall exceed 11.00%, or (C) the Dilution Ratio shall exceed 4.75%;
(h) a Change in Control shall occur with respect to Seller, any Originator or York;
(i) at any time (i) the sum of (A) the Aggregate Investment plus (B) the Total Reserves, exceeds (ii) the sum of (A) the Net Receivables Pool Balance at such time plus (B) the Purchasers' Share of the amount of Collections then on deposit in the Lock-Box Accounts (other than amounts set aside therein representing Discount and Fees), and such circumstance shall not guaranteehave been cured within five days;
(i) York or any of its Subsidiaries shall fail to pay any principal of or premium or interest on any of its Debt that is outstanding in a principal amount of at least $25,000,000 in the aggregate when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement, mortgage, indenture or instrument relating to such Debt (and shall have not otherwise been waived); or (ii) any other event shall occur or condition shall exist under any agreement, mortgage, indenture or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement, mortgage, indenture or instrument (and shall have not been waived), if, in either case: (a) the effect of such non-payment, event or condition is to give the applicable debtholders the right (whether acted upon or not) to accelerate the maturity of such Debt, or (b) any such Debt shall be liabledeclared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Debt shall be required to be made, in each case before the stated maturity thereof;
(k) either: (i) a contribution failure shall occur with respect to any obligation Benefit Plan sufficient to give rise to a lien under Section 302(f) of ERISA and such failure shall not be cured within 10 days, (ii) the Internal Revenue Service shall file a notice of lien asserting a claim or claims of $250,000 or more in the aggregate pursuant to the Internal Revenue Code with regard to any of the assets of Seller, any Originator, York or any ERISA Affiliate and such lien shall have been filed and not released within 10 days, or (iii) the Pension Benefit Guaranty Corporation shall, or shall indicate its Affiliates.
(p) The Seller shall be, at all times, adequately capitalized intention in writing 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, any Originator, York or any ERISA Affiliate to, either file a notice of lien asserting a claim pursuant to ERISA with regard to any assets of the Seller, any Originator, York or any ERISA Affiliate or terminate any Benefit Plan that has unfunded benefit liabilities, or any steps shall have been taken to terminate any Benefit Plan subject to Title IV of ERISA so as to result in connection with this Agreement relating any liability in excess of $1,000,000 and such lien shall have been filed and not released within 10 days;
(l) one or more final judgments for the payment of money shall be entered against the Seller or (ii) one or more final judgments for the payment of money in an amount in excess of $20,000,000, individually or in the aggregate, shall be entered against the Servicer or any Originator on claims not covered by insurance or as to substantive consolidation issueswhich the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution; or
(m) the "Purchase and Sale Termination Date" under and as defined in the certificates accompanying such opinionPurchase and Sale Agreement shall occur under the Purchase and Sale Agreement or any Originator shall for any reason cease to transfer, remain true or cease to have the legal capacity to transfer, or otherwise be incapable of transferring Receivables to the Seller under the Purchase and correct Sale Agreement. EXHIBIT VI SUPPLEMENTAL PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS In addition to the representations, warranties and covenants contained in all material respects at all times.Exhibit III and Exhibit IV hereof, the Seller hereby makes the following additional representations, warranties and covenants:
Appears in 1 contract
Sources: Receivables Purchase Agreement (York International Corp /De/)
Separate Existence. Each of the Seller and the Servicer hereby acknowledges that the Purchasers, the Purchaser Agents Purchasers 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 Cloud Peak, the Servicer, each Originator, Vistra Originators 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 VistraCloud Peak, the Servicer, each Originator, Originators and any other Person, and is not a division of VistraCloud Peak, the Servicer, the Originators, its or their respective other Affiliates Originators 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 Datethat:
(a) The Seller will be a limited liability company whose primary activities are restricted in its limited liability company operating agreement to to: (i) purchasing or otherwise acquiring from any Originatorthe Originators, 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 liabilityliability (including, without limitation, any assumption or guaranty of any obligation of Cloud Peak, any Originator or any Affiliate thereof), other than as expressly permitted by the Transaction Documents.;
(ci) Not less than one independent manager member of the Seller’s board of managers or other governing body (the “Independent ManagerDirector”) shall be an individual a natural person (A) who (i) is not, not at the time of initial appointment and has not been at any time during the five-year period prior to his or her appointment as five (5) years preceding such appointment: (1) an equityholder, director (other than the Independent Manager been, a direct, indirect or beneficial ownerDirector), officer, employee, member, manager, attorney or partner of Cloud Peak, Seller or any of their Affiliates; (2) a customer of, supplier to or other person who derives more than 1% of its purchases or revenues from its activities with Cloud Peak, Seller or any of their Affiliates; (3) a person or other entity controlling, controlled by or under common control with any such equity holder, partner, member, manager customer, supplier or other person; or (4) a member of the immediate family of any such equity holder, director, officer, employee, affiliatemember, associate manager, partner, customer, supplier or supplier of Vistra, the Servicer or any of its or their Affiliates other person and (other than his or her service B) who has (x) prior experience as an independent director for a corporation or an independent manager of a limited liability company whose charter documents required the unanimous consent of all independent director or in independent managers thereof before such corporation could consent to the institution of bankruptcy or insolvency proceedings against it or could file a similar capacity of petition seeking relief under any such Person); applicable federal or state law relating to bankruptcy and (iiy) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. Under this clause (c), 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, by contract or otherwise. (ii) The limited liability company operating agreement of the Seller shall at all times provide that that: (iA) the Seller’s Manager (as defined in its limited liability company agreement) 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 Seller unless the Manager and the Independent Manager Director shall approve the taking of such action in writing before the taking of such action; , and (iiB) such provision and each other provision requiring an Independent Director cannot be amended without the prior written consent of the Independent Manager.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, VistraCloud Peak, the Servicer or any Originator or any of their respective other Affiliates.;
(e) The Seller shall conduct its affairs strictly in accordance with its organizational documents and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and board of managers’ meetings appropriate to authorize all limited liability company action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(f) Any employee, consultant or agent of the Seller will be compensated from the Seller’s funds for services provided to the Seller, and to the extent that Seller shares the same officers or other employees as Cloud Peak or any Originator (or any other Affiliate thereof), the salaries and expenses relating 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 such common officers and employees. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(fg) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the Seller will not incur any material indirect or overhead expenses for items shared with Vistra Cloud Peak or the Servicer any Originators (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; providedit being understood that Cloud Peak, that the Servicer may in its capacity as Servicer, shall 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.;
(gh) The Seller’s operating expenses will not be paid by Vistra, the Servicer, Cloud Peak or any Originator or any other Affiliate thereof.;
(hi) The Seller will have its own separate stationery;
(j) The Seller’s books and records will be maintained separately from those of VistraCloud Peak, each Originator and any other Affiliate thereof and in a manner such that it will not be difficult or costly to segregate, ascertain or otherwise identify the Servicer assets and liabilities of Seller;
(k) All financial statements of Cloud Peak or any Originator or any of their respective other Affiliates.
Affiliate thereof that are consolidated to include Seller will disclose that (i) The the Seller’s sole business consists of the purchase or acceptance through capital contributions of the Receivables and Related Rights from such Originator and the subsequent retransfer of or granting of a security interest in such Receivables and Related Rights to certain purchasers party to this Agreement, (ii) the Seller is a separate legal entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the Seller’s assets shall not be included prior to any assets or value in the consolidated financial statements Seller becoming available to the Seller’s equity holders and (iii) the assets of Vistra, the Servicer Seller are not available to pay creditors of Cloud Peak 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 Cloud Peak or any other Person and (ii) the Seller’s assets shall be listed on the Seller’s own separate balance sheet.Originator;
(jl) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of VistraCloud Peak, the Servicer or any Originator or any of their respective other Affiliates.Affiliates thereof;
(km) The Seller will strictly observe corporate formalities in its dealings with VistraCloud Peak, the Servicer or each Originator and any Originator or any of their respective other AffiliatesAffiliates thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of VistraCloud Peak, the Servicer or any Originator or any of their respective other Affiliates thereof except as permitted by this AgreementAgreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which VistraCloud Peak or any Affiliate thereof (other than Cloud Peak in its capacity as the Servicer) has independent access. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the Servicer or property of Cloud Peak, any Originator or any of their respective Subsidiaries or other Affiliates has independent access.thereof. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(ln) The Seller will maintain arm’s-length relationships with Cloud Peak, each of Vistra, the Servicer or any Originator (and any of their other Affiliates)Affiliates thereof. 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, Seller on the one hand, nor the Servicer Cloud Peak or any Originator, on the otherother hand, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other. The Seller Seller, Cloud Peak and the Servicer each Originator will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single 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 guaranteehave a separate area from Cloud Peak and each Originator for its business (which may be located at the same address as such entities) and to the extent that any other such entity has offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall not otherwise be liable, with respect to any obligation bear its fair share of any of its Affiliates.such expenses; and
(p) The To the extent not already covered in paragraphs (a) through (o) above, Seller shall be, at all times, adequately capitalized to engage comply and/or act in accordance with the transactions contemplated in its limited liability company agreement.
(q) provisions of Section 6.4 of the Purchase and Sale Agreement. 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 following shall be a “Termination Event”:
(i) the Seller, Cloud Peak, any Originator or the Servicer shall fail to perform or observe any term, covenant or agreement under this Agreement or any other Transaction Document and, except as otherwise provided herein, such failure shall, solely to the extent capable of cure, continue for thirty days after the earlier of any such Person’s knowledge or notice thereof or (ii) the Seller or the Servicer shall fail to make when due any payment or deposit to be made by it under this Agreement or any other Transaction Document and such failure shall remain unremedied for three Business Days;
(b) Cloud Peak (or any Affiliate thereof) shall fail to transfer to any successor Servicer, when required, any rights pursuant to this Agreement that Cloud Peak (or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the Seller, the Servicer or any Originator (or any of their respective officers) under or in connection with this Agreement relating or any other Transaction Document, or any information or report delivered by the Seller, the Servicer or any Originator pursuant to substantive consolidation issuesthis Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered and, if the representation or warranty is of a type that is capable of being cured, shall remain incorrect or untrue for thirty days after the earlier of such Person’s knowledge or notice thereof;
(d) the Seller or the Servicer shall fail to deliver any Information Package or Interim Report when due pursuant to this Agreement, and such failure shall remain unremedied for two Business Days;
(e) this Agreement (and each Lock-Box Agreement, as applicable) or any purchase or reinvestment pursuant to this Agreement shall for any reason: (i) cease to create, or the Purchased Interest shall for any reason cease to be, a valid and enforceable first priority perfected undivided percentage ownership or security interest to the extent of the Purchased Interest in each Pool Receivable, the certificates accompanying Related Security and Collections with respect thereto, free and clear of any Adverse Claim (other than Permitted Liens), or (ii) cease to create with respect to the Pool Assets, or the interest of the Administrator (for the benefit of the Administrator, the Purchaser Agents and the Purchasers) with respect to such opinionPool Assets shall cease to be, remain true a valid and correct enforceable first priority perfected security interest, free and clear of any Adverse Claim (other than Permitted Liens);
(f) (A) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in all respect of the Seller, the Parent, Cloud Peak, the Servicer or any Originator or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Seller, the Parent, Cloud Peak, the Servicer or any Originator or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered, (B) the Seller, the Parent, Cloud Peak, the Servicer or any Originator shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to consent in a timely and appropriate manner, any proceeding or petition described in clause (A) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Seller, the Parent, Cloud Peak, the Servicer or any Originator or for a substantial part of its assets, (iv) file an answer admitting the material respects at all times.allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing or (C) the Seller, the Parent, Cloud Peak, the Servicer or any Originator shall become unable, admit in writing its inability or fail generally to pay its debts as they become due,
(g) any of the following shall occur:
(i) the Default Ratio shall exceed 3.00%;
(ii) the average Default Ratio for any three consecutive calendar months shall exceed 2.00%;
(iii) the Delinquency Ratio shall exceed 4.50%;
(iv) the average Delinquency Ratio for any three consecutive calendar months shall exceed 3.50%;
(v) the average Dilution Ratio for any three consecutive calendar months shall exceed 3.00%; or
(vi) the Days’ Sales Outstanding shall exceed 40 days;
(h) a Change in Control shall occur;
(i) the Purchased Interest shall exceed 100% for two (2) consecutive Business Days;
(j) (i) the Parent, Cloud Peak or any of their respective Subsidiaries fail to pay any principal of or premium or interest on any Material Debt when the same becomes due and payable (whether by scheduled maturity, re
Appears in 1 contract
Sources: Receivables Purchase Agreement (Cloud Peak Energy Inc.)
Separate Existence. Each (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the Seller entity with which such persons are concerned, and shall use its best efforts to avoid the Servicer hereby acknowledges appearance that it is conducting business on behalf of any Affiliate thereof or that the Purchasers, assets of the Purchaser Agents Borrower are available to pay the creditors of any of its equityholders or any Affiliate thereof.
(a) It shall maintain records and books of account separate from those of any other Person.
(b) It shall pay its own operating expenses and liabilities from its own funds.
(c) It shall ensure that the Administrator are entering into annual financial statements of the Equityholder shall disclose the effects of the transactions contemplated by this Agreement hereby in accordance with GAAP.
(d) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(e) It shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(f) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(g) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(h) It shall not amend, supplement or otherwise modify the Special Purpose Provisions contained in its organizational documents (as defined therein), except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned).
(i) It shall at all times hold itself out to the public and all other Transaction Documents in reliance upon the Seller’s identity Persons as a legal entity separate from the Servicer, each Originator, Vistra its member and their respective from any other Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer Person.
(j) It shall take all steps specifically required by this Agreement to continue the Seller’s identity as a file its own tax returns 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, except to the extent that it is treated as a “disregarded entity” for tax purposes and is not a division required to file tax returns under Applicable Law, and shall pay any taxes required to be paid under Applicable Law.
(k) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(l) It shall maintain separate financial statements, showing its assets and liabilities separate and apart from those of Vistra, the Servicer, the Originators, any other Person and not have its or their respective other Affiliates or assets listed on any financial statement of any other Person. Without limiting the generality of the foregoing and ; provided, that its assets may be included 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 consolidated financial statement 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 Affiliate provided that (i) the Seller’s Manager (as defined in its limited liability company agreement) appropriate notation 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 made 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 (if any) to indicate its separateness from such Affiliate and to indicate that (i) such Affiliates are separate legal entities and the Seller’s its assets and credit are not available to satisfy the debts and other obligations of such Affiliates Affiliate or any other Person and (ii) the Seller’s such assets shall also be listed on the Seller’s its own separate balance sheet.
(jm) The Seller’s assets will be maintained It shall not, except for capital contributions or capital distributions permitted under the terms and conditions of its organizational documents and properly reflected on its books and records, enter into any transaction with an Affiliate except on commercially reasonable terms similar to those available to unaffiliated parties in a manner that facilitates their identification and segregation from those of Vistra, the Servicer or any Originator or any of their respective other Affiliatesan arm’s-length transaction.
(kn) The Seller will strictly observe corporate formalities It shall maintain a sufficient number of employees (which number may be zero) in light of its dealings with Vistracontemplated business purpose and pay the salaries of its own employees, the Servicer or any Originator or any of their respective other Affiliatesif any, 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 accessonly from its own funds.
(lo) The Seller will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator It shall use separate invoices bearing its own name.
(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 p) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(q) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not require its members to make additional capital contributions.
(r) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with respect the Transaction Documents.
(s) It shall 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 it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(t) It shall not, to the foregoingfullest extent permitted by law, and they will engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(u) It shall not operate buy or purport to operate hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as an integrated economic unit with respect to each other expressly contemplated by the Transaction Documents.
(v) Except as expressly permitted by the Transaction Documents (which includes, for the avoidance of doubt, REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in their dealing with any other entity.
(mw) None of Vistra, It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Servicer or other Originator shall pay the salaries of Seller’s employees, if anyTransaction Documents.
(nx) No Affiliate of It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by 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.
(oy) The Seller It shall not guarantee, allocate fairly and shall not otherwise be liable, reasonably any overhead expenses that are shared with respect to any obligation of any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(pz) The Seller Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, dated the date hereof, relating to certain nonconsolidation matters.
(aa) Neither the Investment Manager nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior unanimous written consent of the Independent Manager. The organizational documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at all timesleast one Independent Manager; (b) the Borrower shall not, adequately capitalized to engage in without the transactions contemplated in its limited liability company agreement.
(q) Each prior written consent of the Seller Independent Manager, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Servicer will take Independent Manager shall consider only the interests of the Borrower, including its creditors; and (d) the Independent Manager of the Borrower may not be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of the Independent Manager, together with a statement as to the reasons for such other actions as are necessary on its part to ensure removal, and (ii) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the facts and assumptions requirements set forth in the opinion issued by Sidley Austin LLP, as counsel organizational documents of the Borrower for the Seller, in connection with this Agreement relating to substantive consolidation issues, Independent Manager. No resignation or removal of the Independent Manager shall be effective until a successor Independent Manager is appointed and in the certificates accompanying such opinion, remain true and correct in all material respects at all timeshas accepted his or her appointment. The Independent Manager may not be removed other than for Cause.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (BlackRock TCP Capital Corp.)
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 any Originator, the Servicer, each Originator, Vistra ▇▇▇▇▇ Corning and their respective other Affiliates. Therefore, from and after the date hereofOriginal Closing Date, each of the Seller and the Servicer shall take all steps specifically required by this Agreement or reasonably required by the Administrator, any Purchaser Agent or any Purchaser 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▇▇▇▇▇ Corning, the ServicerOriginators, each Originator, the Servicer and any other Person, and is not a division of Vistra▇▇▇▇▇ Corning, the Originators, 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 ▇▇▇▇▇ Corning shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited liability company whose primary activities are restricted in its limited liability company agreement to LLC Agreement to: (i) purchasing or otherwise acquiring from any the Originator, owning, holding, granting security interests or selling interests in Pool Assets; , (ii) entering into agreements for the selling selling, servicing and servicing financing of the Receivables Pool; Pool (including the Transaction Documents), 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 activityactivity except as set forth in this Agreement nor, or incur any indebtedness or liability, liability other than as expressly permitted by the Transaction Documents.;
(ci) Not less than one independent manager member of the Seller’s board of directors (the “Independent ManagerDirector”) shall be an individual a natural person (A) who (i) is not, and has not been at any time during the five-year period prior to his or her appointment as Independent Manager been, five (5) years preceding such person’s initial appointment: (1) a direct, indirect or beneficial ownerstockholder, equityholder, officer, directordirector (other than the Independent Director), employee, member, manager, attorney, partner, affiliate, associate or supplier of VistraSeller, Owens Corning, any Originator, the Servicer or any of its or their respective Affiliates (the “▇▇▇▇▇ Corning Group”); provided, that indirect stock ownership of any member of the ▇▇▇▇▇ Corning Group by any person through a mutual fund or similar diversified investment pool shall not disqualify such person from being an Independent Director unless such person maintains direct or indirect control of the investment decisions of such mutual fund or similar diversified investment pool, (2) a customer of, supplier to or other person who derives more than his 1% of its purchases or her service revenues from its activities with any member of the ▇▇▇▇▇ Corning Group; (3) a trustee, conservator or receiver for any member of the ▇▇▇▇▇ Corning Group; (4) a person or other entity controlling, controlled by or under common control with any such equity holder, partner, member, manager, customer, supplier or other person; or (5) a member of the immediate family of any such equityholder, director, officer, employee, member, manager, partner, customer, supplier or other person and (B) (1) who has (x) prior experience as an independent director for a corporation or an independent manager of a limited liability company whose charter documents required the unanimous consent of all independent director or in independent managers thereof before such corporation could consent to the institution of bankruptcy or insolvency proceedings against it or could file a similar capacity of petition seeking relief under any such Person); applicable federal or state law relating to bankruptcy and (iiy) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities and (2) is (x) an employee of a Recognized Service Provider or (y) reasonably acceptable to the Administrator and each Purchaser Agent (such acceptability of any Independent Director appointed after the date hereof must be evidenced in writing signed by the Administrator and each Purchaser Agent). Under this clause (c), 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, by contract or otherwise. (ii) The limited liability company agreement of the Seller shall at all times provide that that: (iA) the Seller’s Manager (as defined in its limited liability company agreement) 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 Seller unless the Manager and the Independent Manager Director shall approve the taking of such action in writing before the taking of such action; , and (iiB) such provision and each other provision requiring an Independent Director cannot be amended without the prior written consent of the Independent Manager.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra▇▇▇▇▇ Corning, any Originator, the Servicer or any Originator or any of their respective other Affiliates.;
(e) The Seller shall maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its ability to comply with the terms and provisions of any of the Transaction Documents, including, without limitation, paragraph (k) of Exhibit V;
(f) The Seller shall conduct its affairs strictly in accordance with its organizational documents and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and board of directors’ meetings appropriate to authorize all limited liability company action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(g) Any employee, consultant or agent of the Seller will be compensated from the Seller’s funds for services provided to the Seller, and to the extent that Seller shares the same officers or other employees as ▇▇▇▇▇ Corning (or any other Affiliate thereof), the salaries and expenses relating 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 such common officers and employees. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(fh) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer ▇▇▇▇▇ Corning (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, it being understood that the Servicer may ▇▇▇▇▇ Corning shall 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.;
(gi) The Seller’s operating expenses will not be paid by Vistra, the ServicerOwens Corning, any Originator or any other Affiliate thereof.;
(hj) The Seller will have its own separate stationery;
(k) The Seller’s books and records will be maintained separately from those of VistraOwens Corning and any other Affiliate thereof and in a manner such that it will not be difficult or costly to segregate, ascertain or otherwise identify the Servicer or any Originator or any assets and liabilities of their respective other Affiliates.Seller;
(il) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer ▇▇▇▇▇ Corning or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall contain detailed notes clearly stating to include the Seller will disclose that (i) the Seller’s sole business consists of the purchase or acceptance through capital contributions of the Receivables and Related Rights from the Originators and the subsequent retransfer of or granting of a security interest in such Affiliates are Receivables and Related Rights to certain purchasers party to this Agreement, (ii) the Seller is a separate legal entities and entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the Seller’s assets prior to any assets or value in the Seller becoming available to the Seller’s equity holders and credit (iii) the assets of the Seller are not available to satisfy the debts and obligations pay creditors of such Affiliates ▇▇▇▇▇ Corning or any other Person and (ii) Affiliates of ▇▇▇▇▇ Corning or the Seller’s assets shall be listed on the Seller’s own separate balance sheet.Originators;
(jm) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer ▇▇▇▇▇ Corning or any Originator or any of their respective other Affiliates.Affiliates thereof;
(kn) The Seller will strictly observe corporate formalities in its dealings with Vistra, the Servicer ▇▇▇▇▇ Corning or any Originator or any of their respective other AffiliatesAffiliates thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer ▇▇▇▇▇ Corning or any Originator or any of their respective other Affiliates thereof except as permitted by this AgreementAgreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer ▇▇▇▇▇ Corning or any Originator or any of their respective Affiliate thereof (other Affiliates than ▇▇▇▇▇ Corning Sales in its capacity as the Servicer) has independent access.. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of ▇▇▇▇▇ Corning or any Subsidiaries or other Affiliates thereof. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(lo) The Seller will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator Owens Corning (and any of their other AffiliatesAffiliates thereof). 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, Seller on the one hand, nor the Servicer or any Originator▇▇▇▇▇ Corning, on the otherother hand, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other. The Seller and the Servicer ▇▇▇▇▇ Corning will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single 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.and
(p) The Seller shall be, have a separate area from ▇▇▇▇▇ Corning for its business (which may be located at all times, adequately capitalized the same address as such entities) and to engage the extent that any other such entity has offices in the transactions contemplated in same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its limited liability company agreement.
(q) fair share of such expenses. 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 following shall be a “Termination Event”:
(i) the Seller, an Originator, the Performance Guarantor, or the Servicer shall fail to perform or observe any term, covenant or agreement under this Agreement or any other Transaction Document, and, except as otherwise provided herein, such failure, solely to the extent capable of cure, shall continue for 30 days after knowledge or written notice thereof by the Administrator, (ii) the Seller, an Originator, or the Servicer shall fail to make when due (x) any payment in reduction of Aggregate Capital or any deposit of Collections required hereunder or under any other Transaction Document and such failure shall continue unremedied for one (1) Business Day or (y) any payment for any other amounts owing hereunder or under any other Transaction Document and such failure shall continue unremedied for five (5) Business Days or (iii) ▇▇▇▇▇ Corning Sales shall resign as Servicer, and no successor Servicer reasonably satisfactory to the Administrator shall have been appointed;
(b) any representation or warranty made or deemed made by the Seller, the Performance Guarantor, any Originator or the Servicer (or any of their respective officers) under or in connection with this Agreement or any other Transaction Document (other than any deemed representation or warranty made on the date of any reinvestment that no Unmatured Termination Event has occurred and is continuing), or any information or report delivered by the Seller, the Performance Guarantor, any Originator or the Servicer pursuant to this Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered (unless such representation or warranty relates solely to one or more specific Pool Receivables and the relevant Originator or the Servicer makes a payment with respect to such Pool Receivable to the extent required under Section 3.3 of the Purchase and Sale Agreement or otherwise under any other Transaction Document);
(c) the Seller or the Servicer shall fail to deliver the Information Package pursuant to this Agreement, and such failure shall remain unremedied for two Business Days;
(d) this Agreement or any purchase or reinvestment pursuant to this Agreement shall for any reason: (i) cease to create, or the Purchased Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage ownership or security interest to the extent of the Purchased Interest in each Pool Receivable, the Related Security and Collections with respect thereto, free and clear of any Adverse Claim other than Permitted Liens, or (ii) cease to create with respect to the Pool Assets, or the interest of the Administrator with respect to such Pool Assets shall cease to be, a valid and enforceable first priority perfected security interest, free and clear of any Adverse Claim other than Permitted Liens;
(e) the Seller, the Performance Guarantor or the Servicer shall generally not pay its debts as such debts become due (unless such debts are the subject of a bona fide dispute as to liability or amount), or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller, the Performance Guarantor, the Servicer or any Originator seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to substantive consolidation issuesbankruptcy, and insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the certificates accompanying case of any such opinionproceeding instituted against it (but not instituted by it), either such proceeding shall remain true and correct undismissed or unstayed for a period of 60 days, or any of the actions sought in all material respects at all times.such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Seller, the Performance Guarantor, the Servicer or any Originator shall take any corporate or organizational action to authorize any of the actions set forth above in this paragraph
Appears in 1 contract
Separate Existence. Each (i) The Seller shall maintain in full force and effect its existence and rights as a private limited liability company duly incorporated under the laws of Ireland;
(ii) The Seller shall at all times conduct its business and affairs in accordance with its Memorandum and Articles of Association from within Ireland such that, at all times it shall:
(A) maintain its registered office in Ireland;
(B) hold all meetings of its board of directors in Ireland and ensure that all of its directors are resident in Ireland for tax purposes, that they will exercise their control over the business and the Seller independently and that those directors (acting independently) exercise their authority only from and within Ireland by taking all key decisions relating to the Servicer hereby acknowledges Seller in Ireland;
(C) not open any office or branch or place of business outside of Ireland; and
(D) not knowingly (except to the extent that the Purchasers, the Purchaser Agents and the Administrator are entering into the transactions contemplated by this Agreement Transaction Documents and the other Transaction Documents performance of their terms cause it to be so resident) do anything which may result 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 creating an entity with assets and liabilities distinct from those of Vistra, the Servicer, each Originator, and establishment in any other Person, and is not a division of Vistra, the Servicer, the Originators, its or their respective jurisdiction 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:than Ireland.
(aiii) The Seller will be a limited liability company whose primary activities shall ensure that all corporate or other formalities regarding its existence (including holding regular board of directors’ or other similar meetings) 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 activitiesfollowed.
(biv) The Seller shall not take any action or conduct its affairs in a manner that is likely to result in its separate existence as an Irish private limited liability company being ignored or in its assets and liabilities being substantively consolidated with any other person in a bankruptcy, reorganization or other insolvency proceeding, and shall correct any known misunderstandings regarding its separate existence.
(v) The Seller shall not (A) have any subsidiaries, (B) have any employees (other than its directors), (C) engage in any business transaction with any shareholder that would constitute a conflict of interest, (D) pay dividends (except in respect of the Irish Profit Participation Note in accordance with its terms) or activity, or incur (E) issue any indebtedness or liability, shares (other than such shares as expressly permitted by the Transaction Documentsare is issue on June 15, 2009).
(cvi) Not less than The Seller shall maintain at all times at least one independent manager (the “Independent Manager”) shall be an individual director who (iA) is not, independent of each of the Servicers/Originators 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 respective Affiliates and (other than his or her service B) has (1) prior experience as an independent manager director for an entity whose charter documents required the unanimous consent of all independent directors thereof before such entity could consent to the institution of bankruptcy or in insolvency proceedings against it or could file a similar capacity of petition seeking relief under any such Person); applicable law relating to bankruptcy and (ii2) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective 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.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Johnsondiversey Holdings Inc)
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 any Originator, the Servicer, each Originator, Vistra ▇▇▇▇▇ Corning 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 or reasonably required by the Administrator, any Purchaser Agent or any Purchaser 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▇▇▇▇▇ Corning, the ServicerOriginators, each Originator, the Servicer and any other Person, and is not a division of Vistra▇▇▇▇▇ Corning, the Originators, 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 ▇▇▇▇▇ Corning shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited liability company whose primary activities are restricted in its limited liability company agreement to LLC Agreement to: (i) purchasing or otherwise acquiring from any the Originator, owning, holding, granting security interests or selling interests in Pool Assets; , (ii) entering into agreements for the selling selling, servicing and servicing financing of the Receivables Pool; Pool (including the Transaction Documents), 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 activityactivity except as set forth in this Agreement nor, or incur any indebtedness or liability, liability other than as expressly permitted by the Transaction Documents.;
(ci) Not less than one independent manager member of the Seller’s board of directors (the “Independent ManagerDirector”) shall be an individual a natural person (A) who (i) is not, and has not been at any time during the five-year period prior to his or her appointment as Independent Manager been, five (5) years preceding such person’s initial appointment: (1) a direct, indirect or beneficial ownerstockholder, equityholder, officer, directordirector (other than the Independent Director), employee, member, manager, attorney, partner, affiliate, associate or supplier of VistraSeller, ▇▇▇▇▇ Corning, any Originator, the Servicer or any of its or their respective Affiliates (the “▇▇▇▇▇ Corning Group”); provided, that indirect stock ownership of any member of the ▇▇▇▇▇ Corning Group by any person through a mutual fund or similar diversified investment pool shall not disqualify such person from being an Independent Director unless such person maintains direct or indirect control of the investment decisions of such mutual fund or similar diversified investment pool, (2) a customer of, supplier to or other person who derives more than his 1% of its purchases or her service revenues from its activities with any member of the ▇▇▇▇▇ Corning Group; (3) a trustee, conservator or receiver for any member of the ▇▇▇▇▇ Corning Group; (4) a person or other entity controlling, controlled by or under common control with any such equity holder, partner, member, manager, customer, supplier or other person; or (5) a member of the immediate family of any such equityholder, director, officer, employee, member, manager, partner, customer, supplier or other person and (B) (1) who has (x) prior experience as an independent director for a corporation or an independent manager of a limited liability company whose charter documents required the unanimous consent of all independent director or in independent managers thereof before such corporation could consent to the institution of bankruptcy or insolvency proceedings against it or could file a similar capacity of petition seeking relief under any such Person); applicable federal or state law relating to bankruptcy and (iiy) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities and (2) is (x) an employee of a Recognized Service Provider or (y) reasonably acceptable to the Administrator and each Purchaser Agent (such acceptability of any Independent Director appointed after the date hereof must be evidenced in writing signed by the Administrator and each Purchaser Agent). Under this clause (c), 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, by contract or otherwise. (ii) The limited liability company agreement of the Seller shall at all times provide that that: (iA) the Seller’s Manager (as defined in its limited liability company agreement) 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 Seller unless the Manager and the Independent Manager Director shall approve the taking of such action in writing before the taking of such action; , and (iiB) such provision and each other provision requiring an Independent Director cannot be amended without the prior written consent of the Independent Manager.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra▇▇▇▇▇ Corning, any Originator, the Servicer or any Originator or any of their respective other Affiliates.;
(e) The Seller shall maintain its organizational documents in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its ability to comply with the terms and provisions of any of the Transaction Documents, including, without limitation, paragraph (k) of Exhibit V;
(f) The Seller shall conduct its affairs strictly in accordance with its organizational documents and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and board of directors’ meetings appropriate to authorize all limited liability company action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(g) Any employee, consultant or agent of the Seller will be compensated from the Seller’s funds for services provided to the Seller, and to the extent that Seller shares the same officers or other employees as ▇▇▇▇▇ Corning (or any other Affiliate thereof), the salaries and expenses relating 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 such common officers and employees. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(fh) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer ▇▇▇▇▇ Corning (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, it being understood that the Servicer may ▇▇▇▇▇ Corning shall 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.;
(gi) The Seller’s operating expenses will not be paid by Vistra, the Servicer▇▇▇▇▇ Corning, any Originator or any other Affiliate thereof.;
(hj) The Seller will have its own separate stationery;
(k) The Seller’s books and records will be maintained separately from those of Vistra▇▇▇▇▇ Corning and any other Affiliate thereof and in a manner such that it will not be difficult or costly to segregate, ascertain or otherwise identify the Servicer or any Originator or any assets and liabilities of their respective other Affiliates.Seller;
(il) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer ▇▇▇▇▇ Corning or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall contain detailed notes clearly stating to include the Seller will disclose that (i) the Seller’s sole business consists of the purchase or acceptance through capital contributions of the Receivables and Related Rights from the Originators and the subsequent retransfer of or granting of a security interest in such Affiliates are Receivables and Related Rights to certain purchasers party to this Agreement, (ii) the Seller is a separate legal entities and entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the Seller’s assets prior to any assets or value in the Seller becoming available to the Seller’s equity holders and credit (iii) the assets of the Seller are not available to satisfy the debts and obligations pay creditors of such Affiliates ▇▇▇▇▇ Corning or any other Person and (ii) Affiliates of ▇▇▇▇▇ Corning or the Seller’s assets shall be listed on the Seller’s own separate balance sheet.Originators;
(jm) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer ▇▇▇▇▇ Corning or any Originator or any of their respective other Affiliates.Affiliates thereof;
(kn) The Seller will strictly observe corporate formalities in its dealings with Vistra, the Servicer ▇▇▇▇▇ Corning or any Originator or any of their respective other AffiliatesAffiliates thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer ▇▇▇▇▇ Corning or any Originator or any of their respective other Affiliates thereof except as permitted by this AgreementAgreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer ▇▇▇▇▇ Corning or any Originator or any of their respective Affiliate thereof (other Affiliates than ▇▇▇▇▇ Corning Sales in its capacity as the Servicer) has independent access.. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of ▇▇▇▇▇ Corning or any Subsidiaries or other Affiliates thereof. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(lo) The Seller will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator ▇▇▇▇▇ Corning (and any of their other AffiliatesAffiliates thereof). 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, Seller on the one hand, nor the Servicer or any Originator▇▇▇▇▇ Corning, on the otherother hand, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other. The Seller and the Servicer ▇▇▇▇▇ Corning will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single 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.and
(p) The Seller shall be, have a separate area from ▇▇▇▇▇ Corning for its business (which may be located at all times, adequately capitalized the same address as such entities) and to engage the extent that any other such entity have offices in the transactions contemplated in its limited liability company agreement.
(q) Each same location, there shall be a fair and appropriate allocation 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 issuesoverhead costs between them, and in the certificates accompanying each shall bear its fair share of such opinion, remain true and correct in all material respects at all timesexpenses.
Appears in 1 contract
Separate Existence. Each (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the Seller entity with which such persons are concerned, and shall use its best efforts to avoid the Servicer hereby acknowledges appearance that it is conducting business on behalf of any Affiliate thereof or that the Purchasers, assets of the Purchaser Agents Borrower are available to pay the creditors of any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of any other Person.
(c) It shall pay its own operating expenses and liabilities from its own funds.
(d) It shall ensure that the Administrator are entering into annual financial statements of the Equityholder shall disclose the effects of the transactions contemplated by this Agreement hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(i) It shall not amend, supplement or otherwise modify the Special Purpose Provisions contained in its organizational documents (as defined therein), except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned).
(j) It shall at all times hold itself out to the public and all other Transaction Documents in reliance upon the Seller’s identity Persons as a legal entity separate from the Servicer, each Originator, Vistra its member and their respective from any other Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer Person.
(k) It shall take all steps specifically required by this Agreement to continue the Seller’s identity as a file its own tax returns 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, except to the extent that it is treated as a “disregarded entity” for tax purposes and is not a division required to file tax returns under Applicable Law, and shall pay any taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, showing its assets and liabilities separate and apart from those of Vistra, the Servicer, the Originators, any other Person and not have its or their respective other Affiliates or assets listed on any financial statement of 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 its assets may pay all (or any portion of) the expenses relating to the preparation, negotiation, execution and delivery be included in a consolidated financial statement 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 its 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.
so long as (i) The Seller’s assets appropriate notation 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 made on such consolidated financial statements shall contain detailed notes clearly stating (if any) to indicate its separateness from such Affiliate and to indicate that (i) such Affiliates are separate legal entities and the Seller’s its assets and credit are not available to satisfy the debts and other obligations of such Affiliates Affiliate or any other Person and (ii) the Seller’s such assets shall also be listed on the Seller’s its own separate balance sheet.
(jn) The Seller’s assets will be maintained It shall not, except for capital contributions or capital distributions permitted under the terms and conditions of its organizational documents and properly reflected on its books and records, enter into any transaction with an Affiliate except on commercially reasonable terms similar to those available to unaffiliated parties in a manner that facilitates their identification and segregation from those of Vistra, the Servicer or any Originator or any of their respective other Affiliatesan arm’s-length transaction.
(ko) The Seller will strictly observe corporate formalities It shall maintain a sufficient number of employees (which number may be zero) in light of its dealings with Vistracontemplated business purpose and pay the salaries of its own employees, the Servicer or any Originator or any of their respective other Affiliatesif any, 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 accessonly from its own funds.
(lp) The Seller will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator It shall use separate invoices bearing its own name.
(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 q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not require its equityholders to make additional capital contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with respect the Transaction Documents.
(t) It shall 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 it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the foregoingTransaction Documents.
(v) It shall not buy or hold evidence of indebtedness issued by any other Person, and they will except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits, for the avoidance of doubt, the formation of REO Asset Owners), it shall not operate form, acquire or purport to operate as an integrated economic unit with respect to each other hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in their dealing with any other entity.
(mx) None of Vistra, It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Servicer or other Originator shall pay the salaries of Seller’s employees, if anyTransaction Documents.
(ny) No Affiliate of It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by 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.
(oz) The Seller It shall not guarantee, allocate fairly and shall not otherwise be liable, reasonably any overhead expenses that are shared with respect to any obligation of any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(paa) Neither the Borrower nor the Equityholder shall take any action contrary to the “Facts and Assumptions” or “Further Assumptions” sections in the opinion or opinions of Dechert LLP, dated the date hereof, relating to certain nonconsolidation and true sale matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior written consent of at least one Independent Manager (or the unanimous written consent of all Independent Managers, if more than one). The Seller organizational documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Manager; (b) the Borrower shall not, without the prior written consent of at least one Independent Manager (or the unanimous written consent of all timesIndependent Managers, adequately capitalized if more than one), on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to engage in become insolvent, and when voting with respect to such matters, the transactions contemplated in its limited liability company agreement.
(qIndependent Manager(s) Each shall consider only the interests of the Seller Borrower, including its creditors; and (c) no Independent Manager of the Servicer will take Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Manager, together with a statement as to the reasons for such other actions as are necessary on its part to ensure removal, and (ii) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the facts and assumptions requirements set forth in the opinion issued by Sidley Austin LLP, as counsel organizational documents of the Borrower for the Seller, in connection with this Agreement relating to substantive consolidation issues, an Independent Manager. No resignation or removal of an Independent Manager shall be effective until a successor Independent Manager is appointed and in the certificates accompanying such opinion, remain true and correct in all material respects at all timeshas accepted his or her appointment. No Independent Manager may be removed other than for Cause.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (HMS Income Fund, Inc.)
Separate Existence. Each of the Seller and the Servicer hereby acknowledges that the Purchasers, the Purchaser Agents Purchasers 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 ANR, the ServicerTransferors, each Originator, Vistra the Originator 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 or reasonably required by the Administrator or any Purchaser Agent 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 VistraANR, the Servicer, each Originator, Originator and any other Person, and is not a division of VistraANR, the Servicer, the Originators, its or their respective other Affiliates Originator 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 Datethat:
(a) The Seller will be a limited liability company whose primary activities are restricted in its limited liability company operating agreement to to: (i) purchasing or otherwise acquiring from any the 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 liabilityliability (including, without limitation, any assumption or guaranty of any obligation of ANR, the Originator, any Transferor or any Affiliate thereof), other than as expressly permitted by the Transaction Documents.;
(ci) Not less than one independent manager member of the Seller’s board of managers or other governing body (the “Independent ManagerDirector”) shall be an individual a natural person (A) who (i) is not, not at the time of initial appointment and has not been at any time during the five-year period prior to his or her appointment as five (5) years preceding such appointment: (1) an equityholder, director (other than the Independent Manager been, a direct, indirect or beneficial ownerDirector), officer, employee, member, manager, attorney or partner of ANR, Seller or any of their Affiliates; (2) a customer of, supplier to or other person who derives more than 1% of its purchases or revenues from its activities with ANR, Seller or any of their Affiliates; (3) a person or other entity controlling, controlled by or under common control with any such equity holder, partner, member, manager customer, supplier or other person; or (4) a member of the immediate family of any such equity holder, director, officer, employee, affiliatemember, associate manager, partner, customer, supplier or supplier of Vistra, the Servicer or any of its or their Affiliates other person and (other than his or her service B) (1) who has (x) prior experience as an independent director for a corporation or an independent manager of a limited liability company whose charter documents required the unanimous consent of all independent director or in independent managers thereof before such corporation could consent to the institution of bankruptcy or insolvency proceedings against it or could file a similar capacity of petition seeking relief under any such Person); applicable federal or state law relating to bankruptcy and (iiy) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities and (2) is reasonably acceptable to the Administrator and each Purchaser Agent (such acceptability of any Independent Director appointed after the date hereof must be evidenced in writing signed by the Administrator and each Purchaser Agent). Under this clause (c), 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, by contract or otherwise. (ii) The limited liability company operating agreement of the Seller shall at all times provide that that: (iA) the Seller’s Manager (as defined in its limited liability company agreement) 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 Seller unless the Manager and the Independent Manager Director shall approve the taking of such action in writing before the taking of such action; , and (iiB) such provision and each other provision requiring an Independent Director cannot be amended without the prior written consent of the Independent Manager.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, VistraANR, any Transferor, the Servicer or any Originator or any of their respective other Affiliates.;
(e) The Seller shall conduct its affairs strictly in accordance with its organizational documents and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and board of managers’ meetings appropriate to authorize all limited liability company action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(f) Any employee, consultant or agent of the Seller will be compensated from the Seller’s funds for services provided to the Seller, and to the extent that Seller shares the same officers or other employees as ANR or the Originator (or any other Affiliate thereof), the salaries and expenses relating 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 such common officers and employees. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(fg) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the Seller will not incur any material indirect or overhead expenses for items shared with Vistra ANR or the Servicer Originator (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; providedit being understood that ANR, that the Servicer may in its capacity as Servicer, shall 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.;
(gh) The Seller’s operating expenses will not be paid by Vistra, ANR or the Servicer, any Originator or any other Affiliate thereof.;
(hi) The Seller will have its own separate stationery;
(j) The Seller’s books and records will be maintained separately from those of VistraANR, each Originator and any other Affiliate thereof and in a manner such that it will not be difficult or costly to segregate, ascertain or otherwise identify the Servicer assets and liabilities of Seller;
(k) All financial statements of ANR or any the Originator or any of their respective other Affiliates.
(i) The Seller’s assets shall not be included in the Affiliate thereof that are 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 to include Seller will disclose that (i) the Seller’s sole business consists of the purchase or acceptance through capital contributions of the Receivables and Related Rights from the Originator and the subsequent retransfer of or granting of a security interest in such Affiliates are Receivables and Related Rights to certain purchasers party to this Agreement, (ii) the Seller is a separate legal entities and entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the Seller’s assets prior to any assets or value in the Seller becoming available to the Seller’s equity holders and credit (iii) the assets of the Seller are not available to satisfy pay creditors of ANR or the debts and obligations of such Affiliates Originator or any other Person and (ii) Affiliates of ANR or the Seller’s assets shall be listed on the Seller’s own separate balance sheet.Originator;
(jl) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of VistraANR, the Servicer or any Originator or any of their respective other Affiliates.Affiliates thereof;
(km) The Seller will strictly observe corporate formalities in its dealings with VistraANR, the Servicer Originator, the Transferors, or any Originator or any of their respective other AffiliatesAffiliates thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of VistraANR, the Servicer or any Originator or any of their respective other Affiliates thereof except as permitted by this AgreementAgreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which VistraANR or any Affiliate thereof (other than ANR in its capacity as the Servicer) has independent access. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of ANR, the Servicer or any Transferors, the Originator or any of their respective Subsidiaries or other Affiliates has independent access.thereof. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(ln) The Seller will maintain arm’s-length relationships with each of VistraANR, the Servicer or any Transferors, the Originator (and any of their other AffiliatesAffiliates thereof). 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, Seller on the one hand, nor ANR or the Servicer or any Originator, on the otherother hand, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other. The Seller Seller, ANR and the Servicer Originator will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single 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 guaranteehave a separate area from ANR and each Transferor and the Originator for its business (which may be located at the same address as such entities) and to the extent that any other such entity has offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall not otherwise be liable, with respect to any obligation bear its fair share of any of its Affiliates.such expenses; and
(p) The To the extent not already covered in paragraphs (a) through (o) above, Seller shall be, at all times, adequately capitalized to engage comply and/or act in accordance with the transactions contemplated in its limited liability company agreement.
(q) Each provisions of Section 6.4 of the Seller Purchase 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 timesSale Agreement.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Alpha Natural Resources, Inc.)
Separate Existence. Each of the Seller and the Servicer ▇▇▇▇▇▇▇ hereby acknowledges that the Purchasers, the Purchaser Agents Investors and the Administrator Agent and the Co-Agent are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from the Servicer, each Originator, Vistra ▇▇▇▇▇▇▇ and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer ▇▇▇▇▇▇▇ shall take all steps specifically required by this the Agreement or reasonably required by the Agent to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of 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 Datethat:
(a) The Seller will be a limited liability company purpose corporation whose primary activities are restricted in its limited liability company agreement to certificate of incorporation to: (i) purchasing or otherwise acquiring from any Originatorthe Originators, owning, holding, granting security interests or selling interests in 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 member of the Seller's Board of Directors (the “"Independent Manager”Director") shall be an individual who (i) is not, not and has not been at any time during the five-year period prior to his or her appointment as Independent Manager been, preceding five years a direct, indirect or beneficial ownerstockholder, officer, director, employee, creditor, 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 securitiesAffiliates. The limited liability company agreement certificate of incorporation of the Seller shall at all times provide that that: (i) the Seller’s Manager (as defined in its limited liability company agreement) 's Board of Directors 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 Director 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.Director;
(d) The Independent Manager Director 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.Affiliate thereof;
(e) Any employee, consultant or agent of the Seller will be compensated from the Seller’s 's funds for services provided to the Seller. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller's funds;
(f) The Seller will contract with the Servicer, 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 DocumentsAgreement. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer ▇▇▇▇▇▇▇ (or any other Affiliate thereofof Warnaco) 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 '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, it being understood that the Servicer may Warnaco shall 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 's operating expenses will not be paid by Vistra, the Servicer, any Originator ▇▇▇▇▇▇▇ or any other Affiliate thereof.;
(h) All of the Seller's business correspondence and other communications shall be conducted in the Seller's own name and on its own separate stationery;
(i) The Seller’s 's books and records will be maintained separately from those of Vistra, the Servicer or ▇▇▇▇▇▇▇ and any Originator or any of their respective other Affiliates.Affiliate thereof;
(ij) The Seller’s assets shall not be included in the consolidated All 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 Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that that: (i) such Affiliates are separate legal entities and the Seller’s assets and credit are not available to satisfy the debts and obligations a special purpose corporation exists as a Subsidiary of such Affiliates or any other Person Warnaco, and (ii) the Seller’s ▇▇▇▇▇▇▇ has sold receivables and other related assets shall be listed on the Seller’s own separate balance sheet.to such special purpose Subsidiary that, in turn, has sold undivided interests therein to certain financial institutions and other entities;
(jk) The Seller’s '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.Affiliate thereof;
(kl) The Seller will strictly observe corporate formalities in its dealings with Vistra, the Servicer ▇▇▇▇▇▇▇ or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer ▇▇▇▇▇▇▇ or any Originator or any of their respective other Affiliates except as permitted by this AgreementAffiliate thereof. 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 Affiliate thereof (other Affiliates than ▇▇▇▇▇▇▇ in its capacity as the Servicer) has independent access.. The Seller will not guarantee the obligations of any Person, and no Person will guarantee the obligations of the Seller. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate; and
(lm) The Seller will maintain arm’sarm's-length relationships with each of Vistra, the Servicer or any Originator ▇▇▇▇▇▇▇ (and any of their other AffiliatesAffiliate thereof). 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, Seller 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 misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity.
(mn) None of Vistra, the Servicer or other Originator ▇▇▇▇▇▇▇ shall not pay the salaries of Seller’s '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.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Warnaco Group Inc /De/)
Separate Existence. Each of the Seller and the Servicer hereby acknowledges that the Purchasers, the Purchaser Agents Purchasers and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from CB, the Servicer, each Originator, Vistra Originators 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 or reasonably required by the Administrator or any Purchaser Agent to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of VistraCB, any Originator, the Servicer, each Originator, Servicer and any other Person, and is not a division of VistraCB, any Originator, the Servicer, the Originators, its or their respective other Affiliates Servicer 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 Datethat:
(a) The Seller will be a limited liability company whose primary activities are restricted in its limited liability company operating agreement to to: (i) purchasing or otherwise acquiring from any Originatorthe Originators or CB, owning, holding, servicing, granting security interests or selling interests in Pool Assets; , (ii) entering into agreements for the selling and servicing of the Receivables Pool; Pool or for borrowing from banks, financial institutions or similar entities, (iii) to purchase, hold and sell common stock or similar equity interests (“Equity Investments”) and to exercise all voting rights and other incidents of ownership with respect to the Equity Investments, (iv) to use proceeds derived from sale or ownership of Pool Assets and Equity Investments as determined by the board of directors of the Seller and permitted by the Transaction Documents, and (iiiv) 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 liabilityliability (including, without limitation, any assumption or guaranty of any obligation of CB, any Originator, the Servicer or any Affiliate thereof), other than as expressly permitted by the Transaction Documents.;
(c) Not less than one independent manager member of the Seller's Board of Directors (the “Independent ManagerDirector”) shall be an individual a natural person (A) who (i) is not, not at the time of initial appointment and has not been at any time during the five-year period prior to his or her appointment as Independent Manager beenfive (5) years preceding such appointment: (1) an equityholder, a direct, indirect or beneficial ownerdirector (other than an independent director), officer, director, employee, affiliatemember (other than a special member or similar capacity), associate manager (other than an independent manager), attorney or supplier partner of VistraCB, the Seller, Servicer or any of its their Affiliates; (2) a customer of, supplier to or their Affiliates (other person who derives more 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 1% of its businessespurchases or revenues from its activities with CB, 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 Affiliates; (3) a person or other Affiliates.
entity controlling, controlled by or under common control with any such equity holder, partner, member, manager, customer, supplier or other person; or (e4) Any a member of the immediate family of any such equity holder, director, officer, employee, consultant member, manager, partner, customer, supplier 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 person and (iiB) the Seller’s assets shall be listed on the Seller’s own separate balance sheet.
who has (j1) 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 prior experience as an integrated economic unit with respect to each other independent director for a corporation or in their dealing with any other entity.
(m) None an independent director or independent manager 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 a limited liability company agreement.
(q) Each whose charter documents required the unanimous consent of all independent directors or independent managers thereof before such corporation or limited liability company could consent to 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 institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.bankruptcy and
Appears in 1 contract
Sources: Receivables Purchase Agreement (Cincinnati Bell Inc)
Separate Existence. Each of the Seller and the Servicer Peabody 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 Peabody and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer Peabody shall take all steps specifically required by this the Agreement or reasonably required by the Administrator 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, Peabody and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsPeabody, 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 Peabody shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited purpose limited liability company whose primary activities are restricted in its limited liability company agreement to certificate of formation to: (i) purchasing or otherwise acquiring from any Originatorthe Originators or Peabody (or their Affiliates), owning, holding, granting security interests or selling interests in Pool Assets; Assets (or other receivables originated by the Originators or their Affiliates, and certain related assets), (ii) entering into agreements for the selling and servicing of the Receivables Pool; Pool (or other receivables pools originated by the Originators or their Affiliates), and (iii) conducting such other activities as it deems are necessary or appropriate to carry out its primary such activities.;
(b) The Seller shall not engage in any business or activity, or activity except as set forth in this Agreement nor incur any indebtedness or liability, other than as expressly permitted by the Transaction Documents.;
(c) Not less than one independent manager of the Seller’s Directors (the “Independent ManagerDirector”) shall be an individual a natural person who (iA) is not, and has not at any time during for the five-year period prior to his or her appointment as Independent Manager Director has not been, a direct, indirect and during the continuation of his or beneficial owner, officerher service as Independent Director is not: (i) an employee, director, employeestockholder, affiliatemember, associate manager, partner or supplier officer of Vistrathe Seller, the Servicer Peabody or any of its or their respective Affiliates (other than his or her service as an independent manager or in a similar capacity Independent Director of any such Personthe Seller); (ii) a customer or supplier of the Seller, Peabody or any of their respective Affiliates (other than his or her service as an Independent Director of Seller); or (iii) any member of the immediate family of a person described in clause (i) or (ii) above, and (B) has, (i) prior experience as an Independent Director for a corporation or 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 (ii) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. The limited liability company agreement Such Independent Director of the Seller shall at all times have been appointed as such in strict compliance with the Seller’s LLC Agreement. The Seller’s LLC Agreement shall provide that (i) the Seller’s Manager (as defined in its limited liability company agreement) Board of Directors shall not approve, or take any other action to cause the filing of, or join in any filing of, a voluntary bankruptcy petition or insolvency petition, dissolution, liquidation, consolidation, merger, sale of all or substantially all of its assets, assignment for the benefit of creditors, admit in writing its inability to pay its debts generally as they become due, or to engage in any other business or activity with respect to the Seller unless (x) there is at least one Independent Director then serving as a director of the Manager Seller and appointed pursuant to and in strict compliance with the Seller’s LLC Agreement, and (y) all such Independent Manager Directors of the Seller shall approve have approved the taking of such action in writing before prior to the taking of such action; action and (ii) such provision cannot be amended without the prior written consent of the Independent Manager.Director and the Administrator;
(d) Upon the occurrence of any event that causes the Member to cease to be a member of the Seller (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Seller and the admission of the transferee pursuant to Sections 21 and 23 of the LLC Agreement, or (ii) the resignation of the Member and the admission of an additional member of the Seller pursuant to Sections 22 and 23 of the LLC Agreement), each person acting as an Independent Director pursuant to Section 10 of the LLC Agreement shall, without any action of any Person and simultaneously with the Member ceasing to be a member of the Seller, automatically be admitted to the Seller as a Special Member and shall continue the Seller without dissolution. No Special Member may resign from the Seller or transfer its rights as a Special Member unless (i) a successor Special Member has been admitted to the Seller as Special Member by executing a counterpart to the LLC Agreement, and (ii) such successor has also accepted its appointment as Independent Director pursuant to Section 10 of the LLC Agreement; provided, however, the Special Members shall automatically cease to be members of the Seller upon the admission to the Seller of a substitute Member.
(e) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer Peabody or any Originator or any of their respective other Affiliates.Affiliate thereof;
(ef) 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, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(fg) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer Peabody (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, it being understood that the Servicer may Peabody shall 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.;
(gh) The Seller’s operating expenses will not be paid by Vistra, the Servicer, any Originator Seller and not by Peabody or any other Affiliate thereof.;
(hi) All of the Seller’s business correspondence and other communications shall be conducted in the Seller’s own name and on its own separate stationery;
(j) The Seller’s books and records will be maintained separately from those of Vistra, the Servicer or Peabody and any Originator or other Affiliate thereof and any of their respective other Affiliates.Person;
(ik) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer Peabody or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that that: (i) such Affiliates are separate legal entities and the Seller’s assets and credit are not available to satisfy the debts and obligations a special purpose limited liability company exists as a Subsidiary of such Affiliates or any other Person Peabody, and (ii) the Seller’s Originators have sold receivables and other related assets shall be listed on to the Seller’s own separate balance sheet.Contributor, which has contributed such receivables and other related assets to such special purpose Subsidiary that, in turn, has sold such receivables and other related assets to certain financial institutions and other entities;
(jl) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer Peabody or any Originator or Affiliate thereof and any of their respective other Affiliates.Person;
(km) The Seller will strictly observe corporate organizational formalities in its dealings with Vistra, the Servicer Peabody or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer Peabody or any Originator or any of their respective other Affiliates Affiliate thereof except as permitted by this Agreementthe Agreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer Peabody or any Originator Affiliate thereof or any of their respective other Affiliates Person has independent access., and the Seller shall use separate invoices and checks from any other Person. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of Peabody or any Subsidiary or other Affiliate of Peabody (other than the Seller). The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(ln) The Seller will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator Peabody (and any of their other AffiliatesAffiliate thereof). 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, Seller nor the Servicer or any Originator, on the other, Peabody 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 Peabody will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity.;
(mo) None of Vistra, the Servicer or other Originator Peabody shall not 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 does not and will not hold itself responsible for the obligations of any other Person, and shall be, at all times, adequately capitalized to engage in not guarantee or become liable for the transactions contemplated in its limited liability company agreement.debts of any other Person;
(q) The Seller will conduct its business in its own name and shall hold itself out as a separate entity from any other Person;
(r) The Seller shall maintain a sufficient number of employees and adequate capital in light of its contemplated business activities;
(s) The Seller shall not acquire the obligations or securities of any of its members;
(t) The Seller will remain a wholly-owned subsidiary of a United States person (within the meaning of Section 7701(a)(30) of the Internal Revenue Code) and not be subject to withholding under Section 1446 of the Internal Revenue Code, and no action will be taken that would cause the Seller to (i) be treated other than as a “disregarded entity” within the meaning of U.S. Treasury Regulation § 301.7701-3 for U.S. federal income tax purposes or (ii) become an association taxable as a corporation or a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; and
(u) The Seller shall not pledge its assets for the benefit of any other Person or make any loans or advances to any other Person, except pursuant to the Transaction Documents. 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 following shall be a “Termination Event”:
(i) the Seller, Peabody, any Originator or the Servicer (if Peabody or any of its Affiliates) shall fail to perform or observe any term, covenant or agreement under the Agreement (other than those terms, covenants or agreements contained in Exhibit IV, Sections 1(a), 1(l) (except clause (iv) thereof), 2(a), and 2(l) (except clause (viii) thereof)) or any other Transaction Document and, except as otherwise provided herein, such failure shall continue for five consecutive Business Days after knowledge or notice thereof, (ii) the Seller or the Servicer shall fail to make when due any payment or deposit to be made by it under the Agreement and such failure shall continue unremedied for one Business Day, (iii) Peabody shall resign as Servicer, and no successor Servicer reasonably satisfactory to the Administrator shall have been appointed, or (iv) the Seller, Peabody, any Originator or the Servicer (if Peabody or any of its Affiliates) shall fail to perform or observe any term covenant or agreement in any of Exhibit IV, Sections 1(a), 1(l) (except clause (iv) thereof), 2(a), or 2(l) (except clause (viii) thereof) and, except as otherwise provided herein, such failure shall continue for thirty days after knowledge or notice thereof;
(b) Peabody (or any Affiliate thereof) shall fail to transfer to any successor Servicer when required any rights pursuant to the Agreement that Peabody (or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the Seller, Peabody or any Originator (or any of their respective officers) under or in connection with this the Agreement or any other Transaction Document, or any information or report delivered by the Seller, Peabody or any Originator or the Servicer pursuant to the Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered, and shall remain incorrect or untrue for 10 Business Days after notice to the Seller or the Servicer of such inaccuracy;
(d) the Seller or the Servicer shall fail to deliver the Information Package pursuant to the Agreement, and such failure shall remain unremedied for two Business Days;
(e) the Agreement or any Investment or Reinvestment pursuant to the Agreement shall for any reason: (i) cease to create a valid and enforceable perfected ownership or security interest in each Pool Receivable, the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, or (ii) cease to create with respect to the Pool Assets, or the interest of the Administrator with respect to such Pool Assets shall cease to be, a valid and enforceable first priority perfected ownership or security interest, free and clear of any Adverse Claim;
(f) the Seller, Peabody or any Originator shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller, Peabody or any Originator seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to substantive consolidation issuesbankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Seller, Peabody or any Originator shall take any corporate or organizational action to authorize any of the actions set forth above in this paragraph;
(g) (i) the (A) Default Ratio shall exceed 2.25% or (B) the Delinquency Ratio shall exceed 4.50% or (ii) the average for three consecutive calendar months of: (A) the Default Ratio shall exceed 1.75%, (B) the Delinquency Ratio shall exceed 3.50% or (C) the Dilution Ratio shall exceed 2.50%;
(h) a Change in Control shall occur;
(i) at any time the Purchased Assets Coverage Percentage exceeds 100%, and in such circumstance shall not have been cured within two Business Days;
(i) the certificates accompanying such opinion, remain true and correct in all material respects at all times.occurrence of a
Appears in 1 contract
Sources: Receivables Purchase Agreement (Peabody Energy Corp)
Separate Existence. Each of the Seller and the Servicer York hereby acknowledges that the Purchasers, the Purchaser Agents Agents, the Administrator and the Administrator Liquidity Providers are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from the Servicer, each Originator, Vistra York and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer York shall take all steps specifically required by this the Agreement or reasonably required by the Administrator to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of Vistra, the Servicer, each Originator, York and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsYork, 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 York shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited purpose limited liability company whose primary activities are restricted in its limited liability company agreement to to: (i) purchasing or otherwise acquiring from any Originatorthe Originators, 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 member of the Seller's Board of Directors (the “"Independent Manager”Director") 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 ownerstockholder, officer, director, employee, affiliate, associate or supplier of Vistra, the Servicer York 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 securitiesAffiliates. The limited liability company agreement of the Seller shall at all times provide that that: (i) the Seller’s Manager (as defined in its limited liability company agreement) 's Board of Directors 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 Director 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.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer York or any Originator or any of their respective other Affiliates.Affiliate thereof;
(e) Any employee, consultant or agent of the Seller will be compensated from the Seller’s 's funds for services provided to the Seller. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller's funds;
(f) The Seller will contract with the Servicer, 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 DocumentsAgreement. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer York (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 '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, it being understood that the Servicer may York shall 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 's operating expenses will not be paid by Vistra, the Servicer, any Originator York or any other Affiliate thereof.;
(h) All of the Seller's business correspondence and other communications shall be conducted in the Seller's own name and on its own separate stationery;
(i) The Seller’s 's books and records will be maintained separately from those of Vistra, the Servicer or York and any Originator or any of their respective other Affiliates.Affiliate thereof;
(ij) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer York or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that that: (i) such Affiliates are separate legal entities and the Seller’s assets and credit are not available to satisfy the debts and obligations a special purpose limited liability company exists as a Subsidiary of such Affiliates or any other Person York, and (ii) the Seller’s Originators have sold receivables and other related assets shall be listed on the Seller’s own separate balance sheet.to such special purpose Subsidiary that, in turn, has sold undivided interests therein to certain financial institutions and other entities;
(jk) The Seller’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer York or any Originator or any of their respective other Affiliates.Affiliate thereof;
(kl) The Seller will strictly observe corporate organizational formalities in its dealings with Vistra, the Servicer York or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer York or any Originator or any of their respective other Affiliates Affiliate thereof except as permitted by this Agreementthe Agreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer York or any Originator or any of their respective Affiliate thereof (other Affiliates than York in its capacity as the Servicer) has independent access.. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of York or any Subsidiary or other Affiliate of York. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(lm) The Seller will maintain arm’sarm's-length relationships with each of Vistra, the Servicer or any Originator York (and any of their other AffiliatesAffiliate thereof). 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, Seller nor the Servicer or any Originator, on the other, York 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 York will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity.; and
(mn) None of Vistra, the Servicer or other Originator York shall not pay the salaries of Seller’s 's employees, if any.. EXHIBIT V TERMINATION EVENTS Each of the following shall be a "Termination Event":
(ni) No Affiliate of the Seller shall advance funds to, or guaranty debts of, the Seller, York, any Originator or the Servicer shall fail to perform or observe any term, covenant or agreement under the Agreement or any other Transaction Document and, except as otherwise provided herein herein, such failure shall continue for more than 15 Business Days after knowledge or notice thereof, (ii) the Seller or the Servicer shall fail to make when due any payment or deposit to be made by it under the Agreement (without counting any amounts made available in connection with the Take Out Securitization) and such failure shall continue unremedied for one Business Day, (iii) York shall resign as Servicer, and no successor Servicer reasonably satisfactory to the Administrator and the Majority Purchasers shall have been appointed, (iv) the Seller shall have breached any of its covenants and agreements set forth in the first sentence of paragraph 1(b), or in paragraphs 1(d), 1(e), 1(f), 1(i), 1(j), 1(l), 1(m), 1(n) or paragraph 3 of Exhibit IV to the Agreement, after giving effect to any applicable cure period, if any, expressly set forth therein, and solely to the extent that no cure period is set forth in the related paragraph, the applicable cure period shall be 5 Business Days or (v) York or the Servicer shall have breached any of its covenants and agreements set forth in the first sentence of paragraph 2(b), or in paragraphs 2(d), 2(g) or 2(h) or paragraph 3 of Exhibit IV to the Agreement, after giving effect to any applicable cure period, if any, expressly set forth therein, and solely to the extent that no cure period is set forth in the related paragraph, the applicable cure period shall be 5 Business Days;
(b) York (or any Affiliate thereof) shall fail to transfer to any successor Servicer when required any rights pursuant to the Agreement that York (or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the Seller, the Servicer, York or any Originator (or any of their respective officers) under or in connection with the Agreement or any other Transaction DocumentsDocument, or any information or report (other than in any Information Package) delivered by the Seller, the Servicer, York or any Originator pursuant to the Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any respect when made or deemed made or delivered; provided, that an Affiliate however, if the violation of this paragraph (c) by the Seller, the Servicer or any Originator may be cured without any potential or actual detriment to the Issuer, the Administrator or any Program Support Provider, the Seller, the Servicer, York, or such Originator, as applicable, shall have 15 Business Days from the earlier of (i) such Person's actual knowledge of such failure and (ii) notice to such Person of such failure to so cure any such violation before a Termination Event shall occur so long as such Person is diligently attempting to effect such cure;
(d) the Seller or the Servicer shall fail to deliver the Information Package pursuant to the Agreement, and such failure shall remain unremedied for two Business Days;
(e) the Agreement or any purchase or reinvestment pursuant to the Agreement shall for any reason: (i) cease to create, or the Purchased Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage ownership or security interest to the extent of the Seller may provide funds Purchased Interest in each Pool Receivable, the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, or (ii) cease to create with respect to the Seller in connection Pool Assets, or the interest of the Administrator (for the benefit of the Purchasers) with its capitalization.respect to such Pool Assets shall cease to be, a valid and enforceable first priority perfected security interest, free and clear of any Adverse Claim;
(of) The Seller the Seller, York or any Originator shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller, York or any Originator seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Seller, York or any Originator shall take any organizational action to authorize any of the actions set forth above in this paragraph (f);
(i) (A) the Default Ratio shall exceed 4%, or (B) the Delinquency Ratio shall exceed 13% or (c) the Current Days' Sales Outstanding shall exceed 50 days or (ii) the average for three consecutive calendar months of (A) the Default Ratio shall exceed 3.5%, (B) the Delinquency Ratio shall exceed 12%, or (C) the Dilution Ratio shall exceed 7.25%;
(h) a Change in Control shall occur with respect to Seller, any Originator or York;
(i) at any time (i) the sum of (A) the Aggregate Investment plus (B) the Total Reserves, exceeds (ii) the sum of (A) the Net Receivables Pool Balance at such time plus (B) the Purchasers' Share of the amount of Collections then on deposit in the Lock-Box Accounts (other than amounts set aside therein representing Discount and Fees), and such circumstance shall not guaranteehave been cured within five days;
(i) York or any of its Subsidiaries shall fail to pay any principal of or premium or interest on any of its Debt that is outstanding in a principal amount of at least $25,000,000 in the aggregate when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement, mortgage, indenture or instrument relating to such Debt (and shall have not otherwise been waived); or (ii) any other event shall occur or condition shall exist under any agreement, mortgage, indenture or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement, mortgage, indenture or instrument (and shall have not been waived), if, in either case: (a) the effect of such non-payment, event or condition is to give the applicable debtholders the right (whether acted upon or not) to accelerate the maturity of such Debt, or (b) any such Debt shall be liabledeclared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Debt shall be required to be made, in each case before the stated maturity thereof;
(k) either: (i) a contribution failure shall occur with respect to any obligation Benefit Plan sufficient to give rise to a lien under Section 302(f) of ERISA and such failure shall not be cured within 10 days, (ii) the Internal Revenue Service shall file a notice of lien asserting a claim or claims of $250,000 or more in the aggregate pursuant to the Internal Revenue Code with regard to any of the assets of Seller, any Originator, York or any ERISA Affiliate and such lien shall have been filed and not released within 10 days, or (iii) the Pension Benefit Guaranty Corporation shall, or shall indicate its Affiliates.
(p) The Seller shall be, at all times, adequately capitalized intention in writing 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, any Originator, York or any ERISA Affiliate to, either file a notice of lien asserting a claim pursuant to ERISA with regard to any assets of the Seller, any Originator, York or any ERISA Affiliate or terminate any Benefit Plan that has unfunded benefit liabilities, or any steps shall have been taken to terminate any Benefit Plan subject to Title IV of ERISA so as to result in connection with this Agreement relating any liability in excess of $1,000,000 and such lien shall have been filed and not released within 10 days;
(l) one or more final judgments for the payment of money shall be entered against the Seller or (ii) one or more final judgments for the payment of money in an amount in excess of $20,000,000, individually or in the aggregate, shall be entered against the Servicer or any Originator on claims not covered by insurance or as to substantive consolidation issueswhich the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution; or
(m) the "Purchase and Sale Termination Date" under and as defined in the certificates accompanying such opinionPurchase and Sale Agreement shall occur under the Purchase and Sale Agreement or any Originator shall for any reason cease to transfer, remain true or cease to have the legal capacity to transfer, or otherwise be incapable of transferring Receivables to the Seller under the Purchase and correct Sale Agreement. EXHIBIT VI SUPPLEMENTAL PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS In addition to the representations, warranties and covenants contained in all material respects at all times.Exhibit III and Exhibit IV here
Appears in 1 contract
Sources: Receivables Purchase Agreement (York International Corp /De/)
Separate Existence. Each of the Seller and the Servicer WESCO hereby acknowledges that the Purchasers, the Purchaser Agents Agents, the Administrator and the Administrator Liquidity Providers are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from the Servicer, each Originator, Vistra WESCO and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer WESCO shall take all steps specifically required by this the Agreement or reasonably required by the Administrator to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of Vistra, the Servicer, each Originator, WESCO and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsWESCO, 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 WESCO shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited liability company purpose corporation whose primary activities are restricted in its limited liability company agreement to certificate of incorporation to: (i) purchasing or otherwise acquiring from any Originatorthe Originators, 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 member of the Seller's Board of Directors (the “"Independent Manager”Director") 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 ownerstockholder, officer, director, employee, affiliate, associate or supplier of Vistra, the Servicer WESCO 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 securitiesAffiliates. The limited liability company agreement certificate of incorporation of the Seller shall at all times provide that that: (i) the Seller’s Manager (as defined in its limited liability company agreement) 's Board of Directors 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 Director 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.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer WESCO or any Originator or any of their respective other Affiliates.Affiliate thereof;
(e) Any employee, consultant or agent of the Seller will be compensated from the Seller’s 's funds for services provided to the Seller. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller's funds;
(f) The Seller will contract with the Servicer, 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 DocumentsAgreement. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer WESCO (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 '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, it being understood that the Servicer may WESCO shall 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 's operating expenses will not be paid by Vistra, the Servicer, any Originator WESCO or any other Affiliate thereof.;
(h) All of the Seller's business correspondence and other communications shall be conducted in the Seller's own name and on its own separate stationery;
(i) The Seller’s 's books and records will be maintained separately from those of Vistra, the Servicer or WESCO and any Originator or any of their respective other Affiliates.Affiliate thereof;
(ij) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer WESCO or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that that: (i) such Affiliates are separate legal entities and the Seller’s assets and credit are not available to satisfy the debts and obligations a special purpose corporation exists as a Subsidiary of such Affiliates or any other Person WESCO, and (ii) the Seller’s Originators have sold receivables and other related assets shall be listed on the Seller’s own separate balance sheet.to such special purpose Subsidiary that, in turn, has sold undivided interests therein to certain financial institutions and other entities;
(jk) The Seller’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer WESCO or any Originator or any of their respective other Affiliates.Affiliate thereof;
(kl) The Seller will strictly observe corporate formalities in its dealings with Vistra, the Servicer WESCO or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer WESCO or any Originator or any of their respective other Affiliates Affiliate thereof except as permitted by this Agreementthe Agreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer WESCO or any Originator or any of their respective Affiliate thereof (other Affiliates than WESCO in its capacity as the Servicer) has independent access.. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of WESCO or any Subsidiary or other Affiliate of WESCO. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate; and
(lm) The Seller will maintain arm’sarm's-length relationships with each of Vistra, the Servicer or any Originator WESCO (and any of their other AffiliatesAffiliate thereof). 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, Seller nor the Servicer or any Originator, on the other, WESCO 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 WESCO will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity.
(mn) None of Vistra, the Servicer or other Originator WESCO shall not pay the salaries of Seller’s 's employees, if any.. ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇NTS Each of the following shall be a "Termination Event":
(ni) No Affiliate of the Seller shall advance funds to, or guaranty debts of, the Seller, WESCO, any Originator or the Servicer shall fail to perform or observe any term, covenant or agreement under the Agreement or any other Transaction Document and, except as otherwise provided herein herein, such failure shall continue for 5 days after knowledge or notice thereof, (ii) the Seller or the Servicer shall fail to make when due any payment or deposit to be made by it under the Agreement and such failure shall continue unremedied for three Business Days or (iii) WESCO shall resign as Servicer, and no successor Servicer reasonably satisfactory to the Administrator and the Majority Purchasers shall have been appointed;
(b) WESCO (or any Affiliate thereof) shall fail to transfer to any successor Servicer when required any rights pursuant to the Agreement that WESCO (or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the Seller, WESCO or any Originator (or any of their respective officers) under or in connection with the Agreement or any other Transaction Documents; providedDocument, that an Affiliate of or any information or report delivered by the Seller may provide funds Seller, WESCO or any Originator or the Servicer pursuant to the Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered, and shall remain incorrect or untrue for 5 days after notice to the Seller in connection with its capitalization.or the Servicer of such inaccuracy;
(od) The the Seller or the Servicer shall fail to deliver the Information Package pursuant to the Agreement, and such failure shall remain unremedied for two days;
(e) the Agreement or any purchase or reinvestment pursuant to the Agreement shall for any reason: (i) cease to create, or the Purchased Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage ownership or security interest to the extent of the Purchased Interest in each Pool Receivable, the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, or (ii) cease to create with respect to the Pool Assets, or the interest of the Administrator (for the benefit of the Purchasers) with respect to such Pool Assets shall cease to be, a valid and enforceable first priority perfected security interest, free and clear of any Adverse Claim;
(f) the Seller, WESCO or any Originator shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller, WESCO or any Originator seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Seller, WESCO or any Originator shall take any corporate action to authorize any of the actions set forth above in this paragraph;
(i) the (A) Core Default Ratio shall exceed 6.0%, (B) Construction Default Ratio shall exceed 8.5%, (C) NED ▇▇▇ault Ratio shall exceed 15.0 %, (D) Delinquency Ratio shall exceed 25.0% or (E) Dilution Ratio shall exceed 10.0% or (ii) the average for three consecutive calendar months of: the (A) Core Default Ratio shall exceed 4.5%, (B) Construction Default Ratio shall exceed 7.5%, (C) NED ▇▇▇ault Ratio shall exceed 10.0 %, (D) the Delinquency Ratio shall exceed 19.0% or (E) the Dilution Ratio shall exceed 8.0%;
(h) a Change in Control shall occur;
(i) at any time (i) the sum of (A) the Aggregate Investment plus (B) the Total Reserves, exceeds (ii) the sum of (A) the Net Receivables Pool Balance at such time plus (B) the Purchasers' share of the amount of Collections then on deposit in the Lock-Box Accounts (other than amounts set aside therein representing Discount and Fees), and such circumstance shall not guaranteehave been cured within two Business Days;
(i) WESCO or any of its Subsidiaries shall fail to pay any principal of or premium or interest on any of its Debt that is outstanding in a principal amount of at least $20,000,000 in the aggregate when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement, mortgage, indenture or instrument relating to such Debt (and shall have not otherwise been waived); or (ii) any other event shall occur or condition shall exist under any agreement, mortgage, indenture or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement, mortgage, indenture or instrument (and shall have not been waived), if, in either case: (a) the effect of such non-payment, event or condition is to give the applicable debtholders the right (whether acted upon or not) to accelerate the maturity of such Debt, or (b) any such Debt shall be liabledeclared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Debt shall be required to be made, in each case before the stated maturity thereof;
(k) either: (i) a contribution failure shall occur with respect to any obligation Benefit Plan sufficient to give rise to a lien under Section 302(f) of ERISA, (ii) the Internal Revenue Service shall file a notice of lien asserting a claim or claims of $250,000 or more in the aggregate pursuant to the Internal Revenue Code with regard to any of the assets of Seller, any Originator, WESCO or any ERISA Affiliate and such lien shall have been filed and not released within 10 days, or (iii) the Pension Benefit Guaranty Corporation shall, or shall indicate its Affiliates.
(p) The Seller shall be, at all times, adequately capitalized intention in writing 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, any Originator, WESCO or any ERISA Affiliate to, either file a notice of lien asserting a claim pursuant to ERISA with regard to any assets of the Seller, any Originator, WESCO or any ERISA Affiliate or terminate any Benefit Plan that has unfunded benefit liabilities, or any steps shall have been taken to terminate any Benefit Plan subject to Title IV of ERISA so as to result in connection with this Agreement relating any liability in excess of $1,000,000 and such lien shall have been filed and not released within 10 days;
(l) one or more final judgments for the payment of money shall be entered against the Seller or (ii) one or more final judgments for the payment of money in an amount in excess of $20,000,000, individually or in the aggregate, shall be entered against the Servicer on claims not covered by insurance or as to substantive consolidation issueswhich the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution; or
(m) the "Purchase and Sale Termination Date" under and as defined in the certificates accompanying such opinionSale Agreement shall occur under the Sale Agreement or any Originator shall for any reason cease to transfer, remain true and correct in all material respects at all timesor cease to have the legal capacity to transfer, or otherwise be incapable of transferring Receivables to the Seller under the Sale Agreement.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Wesco International Inc)
Separate Existence. Each of Except for financial reporting purposes (to the Seller extent consolidated reports including the Company are required by generally accepted accounting principles) and for federal income tax purposes if required by the Code and regulations thereunder, and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Members 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 Managers shall take all steps specifically required by this Agreement necessary to continue the Seller’s identity of the Company as a separate legal entity and to make it apparent to third Persons that the Seller Company is an entity with assets and liabilities distinct from those of Vistrathe Members, Affiliates of the Servicer, each Originator, and Members or any other Person, and that the Company is not a division of Vistraany of the Members, Affiliates of the Servicer, the Originators, its or their respective other Affiliates Company or any other Person. Without limiting In that regard and notwithstanding any other provision of this Agreement, so long as any Obligations are outstanding, except as otherwise permitted under the generality of Transaction Documents, the foregoing and in addition to and consistent with the other covenants set forth herein, each of the Seller and the Servicer Company shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datenot:
(a) The Seller will be a limited liability company whose primary engage in any business activity other than the activities are restricted in its limited liability company agreement permitted pursuant 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.Section 1.5 hereof;
(b) The Seller shall not engage in acquire or own any business or activity, or incur any indebtedness or liability, material assets other than the Contributed Assets (as expressly defined in the Asset Contribution Agreement) and assets permitted to be owned by the Company pursuant to the Transaction Documents, and incidental property as may be necessary for the operation of the Company;
(c) sell Contributed Assets;
(d) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation or change its legal structure, merge into or consolidate with any Person or to the fullest extent permitted by law, dissolve, terminate or liquidate in whole or in part or sell all or substantially all of its assets;
(e) except as permitted by the Transaction Documents., own any subsidiary or make any investment in any Person;
(cf) Not less than one independent manager (commingle its assets with 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 assets of Vistra, the Servicer or any of its Affiliates, or their Affiliates of any other Person;
(g) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), 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 providethe Obligations, except for trade payables 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 business which 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.when due;
(h) The Seller’s books fail to pay its debts and records will be maintained separately liabilities from those of Vistraits assets as the same shall become due; provided, however, that the Servicer or foregoing shall not require the Member to make any Originator or any of their respective other Affiliates.additional capital contributions to the Company;
(i) The Seller’s assets shall not be included in the consolidated financial statements fail to maintain its records, books of Vistra, the Servicer or any Originator or any account and bank accounts separate and apart from those 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.Person;
(j) The Seller’s assets will enter into any contract or agreement with any Affiliate, except upon terms and conditions that are commercially reasonable (including limited recourse and non-petition provisions) and intrinsically fair and substantially similar to those that would 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.available on an arm’s-length basis with unrelated third parties;
(k) The Seller will strictly observe corporate formalities in its dealings with Vistra, to 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 fullest extent permitted by this Agreement. The Seller shall not maintain joint bank accounts law, seek its dissolution or other depository accounts to which Vistra, the Servicer winding up in whole or any Originator or any of their respective other Affiliates has independent access.in part;
(l) The Seller will maintain arm’s-length relationships with each fail to correct any known misunderstandings regarding the separate identity of Vistra, the Servicer Company and the Initial Member 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 Affiliate thereof or any Originatorother Person;
(m) guarantee, on the otherbecome obligated for, will be or will hold itself out to be responsible for the debts debt of another Person or have any of its obligations guaranteed by an Affiliate;
(n) make any loan or advances to any third party (other than pursuant to any Revolving Loan or Delayed Drawdown Loan), or hold evidence of indebtedness issued by any other Person (other than the Contributed Assets (as defined in the Asset Contribution Agreement) and the other assets or securities permitted to be owned or redeemed by the decisions Company under the Transaction Documents);
(o) make any loan or actions respecting the daily business and affairs advances to any Affiliate, or hold evidence of the other. The Seller and the Servicer will immediately correct indebtedness issued by any known misunderstanding with respect Affiliate or acquire securities issued by any of its Affiliates, members, partners or shareholders;
(p) fail to the foregoingfile its own separate tax return, and they will not operate if any, or purport to operate as an integrated economic unit with respect to each other or in their dealing file a consolidated federal income tax return with any other entity.Person, except as may be required by the Code and regulations, or fail to pay all taxes which it owes;
(mq) None fail either to hold itself out to the public as a legal entity separate and distinct from any other 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 other party is transacting business, or (ii) to suggest that it is responsible for the debts of Vistraany third party (including any of its Affiliates);
(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; provided, however, that the Servicer foregoing shall not require the Member to make any additional capital contributions to the Company;
(s) except as may be required by the Code and regulations thereunder, hold itself out as or be considered as a department or division of any of its Affiliates or of any other Originator Person;
(t) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person, provided that the Company may be consolidated for accounting purposes with another Person (and will be so consolidated with the Initial Member) in accordance with U.S. generally accepted accounting principles and, when so consolidated, will note on its consolidated financial statements that the Company’s assets are not available to satisfy claims of creditors of such consolidating Person;
(u) fail to pay its own liabilities and expenses only out of its own funds; provided, however, that the foregoing shall not require the Member to make any additional capital contributions to the Company;
(v) fail to pay the salaries of Seller’s its own employees, if any., in light of its contemplated business operations; provided, however, that the foregoing shall not require the Member to make any additional capital contributions to the Company;
(nw) No Affiliate fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(x) fail to use separate stationery, invoices and checks bearing its own name;
(y) pledge or permit the Seller shall advance funds topledge of its assets for the benefit of any other Person, other than as permitted or guaranty debts of, required under the Seller, except as otherwise provided herein or in the other Transaction Documents; provided, that an Affiliate of the Seller may provide funds (z) fail to the Seller in connection observe applicable Delaware limited liability company formalities or fail to comply with its capitalization.this Agreement;
(oaa) The Seller shall not guaranteehave any obligation to indemnify, and shall not otherwise be liableindemnify, with respect its Managers or Members unless such obligation is fully subordinated to the Obligations outstanding and shall not constitute a claim against the Company in the event that its cash flow is insufficient to pay the Obligations outstanding;
(bb) fail at any obligation of time to have at least one (1) Independent Manager; or
(cc) breach 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 obligations set forth in Section 1.8 hereof. Failure of the opinion issued by Sidley Austin LLPCompany, as counsel for or any Member or Manager on behalf of the SellerCompany, to comply with any of the foregoing covenants or any other covenants contained in connection with this Agreement relating to substantive consolidation issues, and in shall not affect the certificates accompanying such opinion, remain true and correct in all material respects at all timesstatus of the Company as a separate legal entity or the limited liability of a Member or a Manager.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Corporate Capital Trust, Inc.)
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 Triumph, the Servicer, each Originator, Vistra Originators 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 or reasonably required by the Administrator or any Purchaser Agent 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 VistraTriumph, any Originator, the Servicer, each Originator, Servicer and any other Person, and is not a division of VistraTriumph, any Originator, the Servicer, the Originators, its or their respective other Affiliates Servicer 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 Datethat:
(a) The Seller will be a limited liability company whose primary activities are restricted in its limited liability company operating agreement to to: (i) purchasing or otherwise acquiring from any Originatorthe Originators or Triumph, owning, holding, granting security interests or selling interests in Pool Assets; , (ii) entering into agreements for the selling and servicing of the Receivables Pool; 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 liabilityliability (including, without limitation, any assumption or guaranty of any obligation of Triumph, any Originator, the Servicer or any Affiliate thereof), other than as expressly permitted by the Transaction Documents.;
(c) Not less than one independent manager member of the Seller’s board of directors (the “Independent ManagerDirector”) shall be an individual a natural person (A) who (i) is not, not at the time of initial appointment and has not been at any time during the five-year period prior to his or her appointment as Independent Manager beenfive (5) years preceding such appointment: (1) an equityholder, a direct, indirect or beneficial ownerdirector, officer, director, employee, affiliatemember, associate manager (other than an independent manager), attorney or supplier partner of VistraTriumph, the Seller, Servicer or any of their Affiliates; (2) a customer of, supplier to or other person who derives more than 1% of its purchases or revenues from its activities with Triumph, Seller, Servicer or any of their Affiliates Affiliates; (3) a person or other than his entity controlling, controlled by or her service under common control with any such equity holder, partner, member, manager, customer, supplier or other person; or (4) a member of the immediate family of any such equity holder, director, officer, employee, member, manager, partner, customer, supplier or other person and (B) who has (1) prior experience as an independent director for a corporation or an independent director or independent manager of a limited liability company whose charter documents required the unanimous consent of all independent directors or in independent managers thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a similar capacity of petition seeking relief under any such Person); applicable federal or state law relating to bankruptcy and (ii2) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. Under this clause (c), 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, by contract or otherwise. The limited liability company operating agreement of the Seller shall at all times provide that that: (iA) the Seller’s Manager (as defined in its limited liability company agreement) board of directors 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 Director shall approve the taking of such action in writing before the taking of such action; , and (iiB) such provision cannot be amended without the prior written consent of the Independent Manager.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, VistraTriumph, any Originator, the Servicer or any Originator or any of their respective other Affiliates.;
(e) The Seller shall conduct its affairs in accordance with its organizational documents and observe all necessary, appropriate and customary limited liability company formalities, including, but not limited to, holding all regular and special members’ and board of directors’ meetings appropriate to authorize all limited liability company action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(f) Any employee, consultant or agent of the Seller will be compensated from the Seller’s funds for services provided to the Seller, and to the extent that Seller shares the same officers or other employees as Triumph, the Servicer or any Originator (or any other Affiliate thereof), the salaries and expenses relating 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 such common officers and employees. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(fg) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or Triumph, the Servicer or any Originator (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; providedit being understood that Triumph, that the Servicer may in its capacity as Servicer, shall 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.;
(gh) The Seller’s operating expenses will not be paid by VistraTriumph, the Servicer, Servicer or any Originator or any other Affiliate thereof.;
(hi) The Seller will have its own separate stationery;
(j) The Seller’s books and records will be maintained separately from those of VistraTriumph, the Servicer, each Originator and any other Affiliate thereof and in a manner such that it will not be difficult or costly to segregate, ascertain or otherwise identify the assets and liabilities of Seller;
(k) All financial statements of Triumph, the Servicer or any Originator or any of their respective other Affiliates.
(i) The Seller’s assets shall not be included in the Affiliate thereof that are 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 to include Seller will disclose that (i) such Affiliates are the Seller is a separate legal entities and entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the Seller’s assets and credit are not prior to any assets or value in the Seller becoming available to satisfy the debts and obligations of such Affiliates or any other Person Seller’s equity holders and (ii) the Seller’s assets shall be listed on of the Seller’s own separate balance sheet.Seller are not available to pay creditors of Triumph, the Servicer or the Originators or any other Affiliates of Triumph, the Servicer or the Originators;
(jl) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of VistraTriumph, the Servicer Servicer, the Originators or any Originator or any of their respective other Affiliates.Affiliates thereof;
(km) The Seller will strictly observe corporate limited liability company formalities in its dealings with VistraTriumph, the Servicer Servicer, the Originators or any Originator or any of their respective other AffiliatesAffiliates thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of VistraTriumph, the Servicer Servicer, the Originators or any Originator or any of their respective other Affiliates thereof except as permitted by this AgreementAgreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer Triumph or any Originator or any of their respective Affiliate thereof (other Affiliates than Triumph in its capacity as the Servicer) has independent access.. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of Triumph, the Originators or any Subsidiaries or other Affiliates thereof. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(ln) The Seller will maintain arm’s-length relationships with each of VistraTriumph, the Servicer or any Originator Servicer, the Originators (and any of their other AffiliatesAffiliates thereof). 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, Seller on the one hand, nor Triumph, the Servicer or any Originator, on the otherother hand, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other. The Seller Seller, Triumph, the Servicer and the Servicer Originators will immediately promptly correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single 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 guaranteehave a separate area from Triumph, the Servicer and each Originator for its business (which may be located at the same address as such entities) and to the extent that any other such entity has offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall not otherwise be liable, with respect to any obligation bear its fair share of any of its Affiliates.such expenses; and
(p) The To the extent not already covered in paragraphs (a) through (o) above, Seller shall be, at all times, adequately capitalized to engage comply and/or act in accordance with the transactions contemplated in its limited liability company agreement.
(q) provisions of Section 6.4 of the Sale Agreement. 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 following shall be a “Termination Event”:
(i) the Seller, Triumph, any Originator or the Servicer shall fail to perform or observe any term, covenant or agreement under this Agreement or any other Transaction Document, except as otherwise provided herein, such failure shall, solely to the extent capable of cure, continue for 15 days after the earlier of any such Person’s knowledge or notice thereof or (ii) the Seller, Triumph, any Originator or the Servicer shall fail to make when due any payment or deposit to be made by it under this Agreement or any other Transaction Document and such failure shall remain unremedied for two Business Days after the earlier of any such Person’s knowledge or notice thereof;
(b) any representation or warranty made or deemed made by the Seller, any Originator or the Servicer (or any of their respective officers) under or in connection with this Agreement or any other Transaction Document, or any information or report delivered by the Seller or the Servicer or any Originator pursuant to this Agreement or any other Transaction Document, shall fail to have been true or correct in any material respect when made or deemed made or delivered and shall remain incorrect or untrue for 10 days after knowledge or notice thereof (if the representation or warranty is of a type that is capable of being cured);
(c) the Seller or the Servicer shall fail to deliver any Information Package when due pursuant to this Agreement, and such failure shall remain unremedied for five Business Days after the earlier of such Person’s knowledge or notice thereof;
(d) this Agreement or any Purchase or reinvestment pursuant to this Agreement shall for any reason: (i) cease to create, or the Purchased Interest shall for any reason cease to be, a valid and enforceable first-priority perfected undivided percentage ownership or security interest in favor of the Administrator (for the benefit of the Purchasers) in each Pool Receivable, the Related Security and Collections with respect thereto, free and clear of any Adverse Claim (other than the Judgment Lien solely in respect of Receivables originated by Triumph Composite Systems, Inc.), or (ii) cease to create with respect to the Pool Assets in favor of the Administrator (for the benefit of the Purchasers), or the interest of the Administrator (for the benefit of the Purchasers) with respect to such Pool Assets shall cease to be, a valid and enforceable first-priority perfected security interest, free and clear of any Adverse Claim (other than the Judgment Lien solely in respect of Receivables originated by Triumph Composite Systems, Inc.);
(e) the Seller, Triumph, the Servicer or any Originator shall generally not pay its debts as such debts become due, shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller, Triumph, the Servicer or any Originator seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to substantive consolidation issuesbankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Seller, Triumph, the Servicer or any Originator shall take any corporate action to authorize any of the actions set forth above in this paragraph;
(i) the (A) Default Ratio shall exceed 3.5% or (B) Delinquency Ratio shall exceed 15.0%, (ii) the average for three consecutive calendar months of: (A) the Default Ratio shall exceed 2.5%, (B) the Delinquency Ratio shall exceed 13.0%, or (C) the Dilution Ratio shall exceed 3.0% or (iii) Days’ Sales Outstanding exceeds 65 days;
(g) a Change in Control shall occur;
(h) the Purchased Interest shall exceed 100% for two consecutive Business Days;
(i) Triumph or any of its Subsidiaries shall fail to pay any principal of or premium or interest on any of its Debt that is outstanding in a principal amount of at least $10,000,000 in the aggregate when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the certificates accompanying agreement, mortgage, indenture or instrument relating to such opinionDebt (whether or not such failure shall have been waived under the related agreement), remain true or (ii) any other event shall occur or condition shall exist under any agreement, mortgage, indenture or instrument relating to any such Debt and correct shall continue after the applicable grace period, if any, specified in all material respects at all times.such agreement, mortgage, indenture or instrument (whether or not such failure shall have been waived under the related agreement), if the effect of such event or condition is to give the
Appears in 1 contract
Sources: Receivables Purchase Agreement (Triumph Group Inc /)
Separate Existence. Each The Receivables Seller shall at all times be operated in such a manner that the separate corporate existence of the Seller and Receivables Seller, on 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 Originatorone hand, and any member of the Parent Group, on the other Personhand, and is will not a division be disregarded in the event of Vistrathe bankruptcy or insolvency of any member of the Parent Group and, the Servicer, the Originators, its or their respective other Affiliates or any other Person. Without 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 Dateforegoing:
(ai) The the Receivables Seller will shall at all times be a limited liability company purpose corporation whose primary activities are restricted in its limited liability company certificate or articles of incorporation to those activities expressly permitted hereunder and under the other Related Documents and the Receivables Seller does not presently engage and will not engage, in any activity other than those activities expressly permitted hereunder and under the other Related Documents, nor will the Receivables Seller enter into any agreement other than this Agreement, the other Related Documents to (i) purchasing which it is a party and, with the prior written consent of the Purchasers and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or otherwise acquiring from any Originator, owning, holding, granting security interests or selling interests in Pool Assets; thereof;
(ii) entering into agreements for no member of the selling and servicing Parent Group or any individual at the time he or she is acting as an officer of any such member will be involved in the day-to-day management of the Receivables Pool; and Seller;
(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 the purchase of Transferred Receivables, the making of the Parent Loan and the Intercompany Loans pursuant to this Agreement, the making of Subordinated Loans pursuant to this Agreement, the repayment of Subordinated Originator Loans, the payment of dividends and the return of capital to its Stockholders (to the extent permitted by the Transaction Documents.) and the payment of servicing fees to the Servicer, the Receivables Seller will not engage in any intercorporate transactions with any member of the Parent Group;
(civ) Not less than one independent manager the Receivables Seller will maintain corporate records and books of account separate from that of each member of the Parent Group, hold regular corporate meetings and otherwise observe corporate formalities and will have a business office separate from that of each member of the Parent Group;
(v) the “Independent Manager”financial statements and books and records of the Receivables Seller and the members of the Parent Group do and will reflect the separate corporate existence of the Receivables Seller;
(A) shall be an individual who the Receivables Seller will maintain its assets separately from the assets of each member of the Parent Group (iincluding through the maintenance of separate bank accounts and except for any Records to the extent necessary to assist the Servicer in connection with the servicing of the Transferred Receivables), (B) is notthe Receivables Seller's funds (including all money, checks and other cash proceeds) and assets, and has records relating thereto, will not at be commingled with those of any time during member of the five-year period Parent Group and (C) the separate creditors of the Receivables Seller will be entitled to be satisfied out of the Receivables Seller's assets prior to his any value in the Receivables Seller becoming available to the Receivables Seller's Stockholders;
(vii) except as otherwise expressly permitted hereunder, under the other Related Documents and under the Receivables Seller's organizational documents, no member of the Parent Group (A) will pay the Receivables Seller's expenses, (B) guarantee the Receivables Seller's obligations, or her appointment (C) advances funds to the Receivables Seller for the payment of expenses or otherwise;
(viii) all business correspondence and other communications of the Receivables Seller will be conducted in the Receivables Seller's own name, on its own stationery and through a separately-listed telephone number;
(ix) the Receivables Seller will not act as Independent Manager beenagent for any member of the Parent Group, but instead will present itself to the public as a directcorporation separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(x) the Receivables Seller will maintain at least two (2) independent directors, indirect or beneficial owner, officer, director, employee, affiliate, associate or supplier one (1) 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) whom has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. The limited liability company agreement , and each of whom (A) is not a Stockholder, director, officer, employee or associate, or any relative of the Seller shall at foregoing, of any member of the Parent Group, all times provide that as provided in its certificate or articles of incorporation, (iB) has prior experience as an independent director for a corporation whose charter documents required the unanimous consent of all independent directors thereof before such corporation 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 (C) is otherwise acceptable to the Purchasers and the Administrative Agent, and both of whom are employed by a nationally-recognized firm, satisfactory to the Purchasers and the Administrative Agent, which specializes in providing independent directors or managers for special purpose corporations or companies; and
(xi) the Seller’s Manager bylaws or the certificate or articles of incorporation of the Receivables Seller will require (as defined in its limited liability company agreementA) shall not approve, or take any other action to cause the filing of, affirmative vote of each independent director before a voluntary bankruptcy petition with respect to under Section 301 of the Seller unless Bankruptcy Code may be filed by the Manager and the Independent Manager shall approve the taking of such action in writing before the taking of such action; Receivables Seller, and (iiB) 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.
Seller to maintain (f1) 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 correct 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 complete 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 account and (ii2) 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 minutes of the Seller are not commingled with those of Vistra, the Servicer or any Originator or any of their respective meetings and 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 proceedings of its AffiliatesStockholders and board of directors.
(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.
Appears in 1 contract
Sources: Receivables Sale and Contribution Agreement (Advancepcs)
Separate Existence. Each of the Seller and the Servicer hereby acknowledges acknowledge that the Purchasers, the each Purchaser Agents and the Administrator are is 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 Servicer and their its 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 the Agreement or reasonably required 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, Servicer 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:
that: (ai) The Seller will be a limited liability purpose company whose primary activities are restricted in its limited liability company agreement to organizational documents to: (i) purchasing or otherwise acquiring from any Originatoracquiring, owning, holding, granting security interests or selling interests in Pool Assets; Receivables, (ii) entering into agreements for the selling and servicing of the Receivables Pool; Receivables, 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.
(cii) Not less than one independent manager member of Seller’s Board of Directors (the “Independent ManagerDirector”) 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 ownerstockholder, 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 and is otherwise independent manager or in a similar capacity of any such Person); Servicer 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 Affiliates to the Seller unless the Manager and the Independent Manager shall approve the taking satisfaction 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.Purchaser;
Appears in 1 contract
Separate Existence. Each of the Seller and the Servicer Targa hereby acknowledges that the Purchasers, the Purchaser Agents Purchasers 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 Targa, the Servicer, each Originator, Vistra Originators and their respective other Affiliates. Therefore, from From and after the date hereofClosing Date, 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 VistraTarga, the Servicer, each Originator, any Originator and any other Person, and is not a division of VistraTarga, the Servicer, the Originators, its or their respective other Affiliates any Originator 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 Datethat:
(a) The Seller will be a limited liability company whose primary activities are restricted in its limited liability company operating agreement to to: (i) purchasing Pool Assets or otherwise acquiring Pool Assets from any Originator, the Originators and 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 liabilityliability (including, without limitation, any assumption or guaranty of any obligation of Targa, any Originator or any Affiliate thereof), other than as expressly permitted by the Transaction Documents.;
(c) Not The Seller shall at all times have a Board of Directors and not less than one independent manager (the “Independent Manager”) member of Seller’s Board of Directors shall be an individual who (iA) is nothas (1) prior experience as an Independent Director or Independent Manager for a corporation or limited liability company whose charter documents required the unanimous consent of all Independent Directors or Independent Managers thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a
(1) a member (whether direct, indirect or beneficial), customer, advisor or supplier of Targa or any of its respective Affiliates, (2) a director, officer, employee, partner, attorney or consultant of Targa or any of its Affiliates other than the Seller, (3) a Person related to any Person referred to in clauses (1) or (2) above, (4) a Person or other entity controlling or under common control with any such stockholder, partner, customer, supplier, employee, officer or director, or (5) a trustee, conservator or receiver for Targa or any of its Affiliates and has (D) shall not at any time during serve as a trustee in bankruptcy for the five-year period prior to his Seller, Targa or her appointment as Independent Manager been, a direct, indirect or beneficial owner, officer, director, employee, affiliate, associate or supplier of Vistraany Affiliate thereof (such an individual meeting the requirements set forth above, the Servicer or any of “Independent Director”) and causing 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 to provide that (iw) at least one member of the Seller’s Board of Directors shall be an Independent Director, (x) the Seller’s Manager (as defined in its limited liability company agreement) Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Seller unless a unanimous vote of the Manager and Seller’s Board of Directors (which vote shall include the affirmative vote of all Independent Manager Directors) shall approve the taking of such action in writing before prior to the taking of such action; , (y) the Seller’s Board of Directors shall not vote on any matter requiring the vote of its Independent Directors under its operating agreement unless and until at least one Independent Director is then serving on the Seller’s Board of Directors and (iiz) such the provisions requiring an Independent Director and the provision described in clauses (x) and (y) of this clause (c) cannot be amended without the prior written consent of each Independent Director (it being understood that, as used in this clause (c), “control” means the Independent Manager.
(d) The Independent Manager shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer possession directly or any Originator or any of their respective other Affiliates.
(e) Any employee, consultant or agent indirectly of the Seller will be compensated from power to direct or cause the Seller’s funds for services provided to the Seller. The Seller will not engage any agents other than its attorneysdirection of management policies or activities of a person or entity whether through ownership of voting securities, 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 Affiliatesotherwise). 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.;
Appears in 1 contract
Sources: Receivables Purchase Agreement (Targa Resources Partners LP)
Separate Existence. Each of the Seller and the Servicer hereby acknowledges that the Purchasers, the Purchaser Agents Purchasers 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 CB, the Servicer, each Originator, Vistra Originators 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 or reasonably required by the Administrator or any Purchaser Agent 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 VistraCB, any Originator, the Servicer, each Originator, Servicer and any other Person, and is not a division of VistraCB, any Originator, the Servicer, the Originators, its or their respective other Affiliates Servicer 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 Datethat:
(a) The Seller will be a limited liability company whose primary activities are restricted in its limited liability company operating agreement to to: (i) purchasing or otherwise acquiring from any Originatorthe Originators or CB, owning, holding, servicing, granting security interests or selling interests in Pool Assets; , (ii) entering into agreements for the selling and servicing of the Receivables Pool; , or for borrowing from banks, financial institutions or similar entities, (iii) to purchase, hold and sell common stock or similar equity interests (“Equity Investments”) and to exercise all voting rights and other incidents of ownership with respect to the Equity Investments, (iv) to use proceeds derived from sale or ownership of Pool Assets and Equity Investments as determined by the board of directors of the Seller and permitted by the Transaction Documents, and (iiiv) 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 liabilityliability (including, without limitation, any assumption or guaranty of any obligation of CB, any Originator, the Servicer or any Affiliate thereof), other than as expressly permitted by the Transaction Documents.;
(c) Not less than one independent manager member of the Seller’s Board of Directors (the “Independent ManagerDirector”) shall be an individual a natural person (A) who (i) is not, not at the time of initial appointment and has not been at any time during the five-year period prior to his or her appointment as Independent Manager beenfive (5) years preceding such appointment: (1) an equityholder, a direct, indirect or beneficial ownerdirector (other than an independent director), officer, director, employee, affiliatemember (other than a special member or similar capacity), associate manager (other than an independent manager), attorney or supplier partner of VistraCB, the Seller, Servicer or any of their Affiliates; (2) a customer of, supplier to or other person who derives more than 1% of its purchases or revenues from its activities with CB, Seller, Servicer or any of their Affiliates Affiliates; (3) a person or other than his entity controlling, controlled by or her service under common control with any such equity holder, partner, member, manager, customer, supplier or other person; or (4) a member of the immediate family of any such equity holder, director, officer, employee, member, manager, partner, customer, supplier or other person and (B) who has (1) prior experience as an independent director for a corporation or an independent director or independent manager of a limited liability company whose charter documents required the unanimous consent of all independent directors or in independent managers thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a similar capacity of petition seeking relief under any such Person); applicable federal or state law relating to bankruptcy and (ii2) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. Under this clause (c), 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, by contract or otherwise. The limited liability company operating agreement of the Seller shall at all times provide that that: (iA) the Seller’s Manager (as defined in its limited liability company agreement) Board of Directors 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 Director shall approve the taking of such action in writing before the taking of such action; , and (iiB) such provision cannot be amended without the prior written consent of the Independent Manager.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, VistraCB, any Originator, the Servicer or any Originator or any of their respective other Affiliates.;
(e) The Seller shall conduct its affairs in accordance with its organizational documents and observe all necessary, appropriate and customary limited liability company formalities, including, but not limited to, holding all regular and special members’ and board of directors’ meetings appropriate to authorize all limited liability company action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(f) Any employee, consultant or agent of the Seller will be compensated from the Seller’s funds for services provided to the Seller, and to the extent that Seller shares the same officers or other employees as CB, the Servicer or any Originator (or any other Affiliate thereof), the salaries and expenses relating 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 such common officers and employees. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(fg) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or CB, the Servicer or any Originator (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; providedit being understood that CB, that the Servicer may in its capacity as Servicer, shall 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.;
(gh) The Seller’s operating expenses will not be paid by VistraCB, the Servicer, Servicer or any Originator or any other Affiliate thereof.;
(hi) The Seller will have its own separate stationery;
(j) The Seller’s books and records will be maintained separately from those of VistraCB, the Servicer, each Originator and any other Affiliate thereof and in a manner such that it will not be difficult or costly to segregate, ascertain or otherwise identify the assets and liabilities of Seller;
(k) All financial statements of CB, the Servicer or any Originator or any of their respective other Affiliates.
(i) The Seller’s assets shall not be included in the Affiliate thereof that are 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 to include Seller will disclose that (i) such Affiliates are the Seller is a separate legal entities and entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the Seller’s assets and credit are not prior to any assets or value in the Seller becoming available to satisfy the debts and obligations of such Affiliates or any other Person Seller’s equity holders and (ii) the Seller’s assets shall be listed on of the Seller’s own separate balance sheet.Seller are not available to pay creditors of CB, the Servicer or the Originators or any other Affiliates of CB, the Servicer or the Originators;
(jl) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of VistraCB, the Servicer Servicer, the Originators or any Originator or any of their respective other Affiliates.Affiliates thereof;
(km) The Seller will strictly observe corporate limited liability company formalities in its dealings with VistraCB, the Servicer Servicer, the Originators or any Originator or any of their respective other AffiliatesAffiliates thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of VistraCB, the Servicer Servicer, the Originators or any Originator or any of their respective other Affiliates thereof except as permitted by this AgreementAgreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer CB or any Originator or any of their respective Affiliate thereof (other Affiliates than CB in its capacity as the Servicer) has independent access.. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of CB, the Originators or any Subsidiaries or other Affiliates thereof. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(ln) The Seller will maintain arm’s-length relationships with each of VistraCB, the Servicer or any Originator Servicer, the Originators (and any of their other AffiliatesAffiliates thereof). 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, Seller on the one hand, nor CB, the Servicer or any Originator, on the otherother hand, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other. The Seller Seller, CB, the Servicer and the Servicer Originators will immediately promptly correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single 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 guaranteehave a separate area from CB, the Servicer and each Originator for its business (which may be located at the same address as such entities) and to the extent that any other such entity has offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall not otherwise be liable, with respect to any obligation bear its fair share of any of its Affiliates.such expenses; and
(p) The To the extent not already covered in paragraphs (a) through (o) above, Seller shall be, at all times, adequately capitalized to engage comply and/or act in accordance with the transactions contemplated in its limited liability company agreement.
(q) Each provisions of Section 6.4 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 timesSale Agreement.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Cincinnati Bell Inc)
Separate Existence. Each of the Seller and the Servicer ▇▇▇▇▇▇▇ hereby acknowledges that the Purchasers, the Purchaser Agents Purchasers and the Administrator Agent and the Co-Agent are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from the Servicer, each Originator, Vistra ▇▇▇▇▇▇▇ and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer ▇▇▇▇▇▇▇ shall take all steps specifically required by this the Agreement or reasonably required by the Agent to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of 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 Datethat:
(a) The Seller will be a limited liability company purpose corporation whose primary activities are restricted in its limited liability company agreement to certificate of incorporation to: (i) purchasing or otherwise acquiring from any Originatorthe Originators, owning, holding, granting security interests or selling interests in 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 member of the Seller's Board of Directors (the “"Independent Manager”Director") shall be an individual who (i) is not, not and has not been at any time during the five-year period prior to his or her appointment as Independent Manager been, preceding five years a direct, indirect or beneficial ownerstockholder, officer, director, employee, creditor, 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 securitiesAffiliates. The limited liability company agreement certificate of incorporation of the Seller shall at all times provide that that: (i) the Seller’s Manager (as defined in its limited liability company agreement) 's Board of Directors 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 Director 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.Director;
(d) The Independent Manager Director 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.Affiliate thereof;
(e) Any employee, consultant or agent of the Seller will be compensated from the Seller’s 's funds for services provided to the Seller. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller's funds;
(f) The Seller will contract with the Servicer, 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 DocumentsAgreement. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer ▇▇▇▇▇▇▇ (or any other Affiliate thereofof Group) 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 '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, it being understood that the Servicer may Group shall 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 's operating expenses will not be paid by Vistra, the Servicer, any Originator ▇▇▇▇▇▇▇ or any other Affiliate thereof.;
(h) All of the Seller's business correspondence and other communications shall be conducted in the Seller's own name and on its own separate stationery;
(i) The Seller’s 's books and records will be maintained separately from those of Vistra, the Servicer or ▇▇▇▇▇▇▇ and any Originator or any of their respective other Affiliates.Affiliate thereof;
(ij) The Seller’s assets shall not be included in the consolidated All 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 Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that that: (i) such Affiliates are separate legal entities and the Seller’s assets and credit are not available to satisfy the debts and obligations a special purpose corporation exists as a Subsidiary of such Affiliates or any other Person Warnaco, and (ii) the Seller’s ▇▇▇▇▇▇▇ has sold receivables and other related assets shall be listed on the Seller’s own separate balance sheet.to such special purpose Subsidiary that, in turn, has sold undivided interests therein to certain financial institutions and other entities;
(jk) The Seller’s '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.Affiliate thereof;
(kl) The Seller will strictly observe corporate formalities in its dealings with Vistra, the Servicer ▇▇▇▇▇▇▇ or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer ▇▇▇▇▇▇▇ or any Originator or any of their respective other Affiliates except as permitted by this AgreementAffiliate thereof. 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 Affiliate thereof (other Affiliates than ▇▇▇▇▇▇▇ in its capacity as the Servicer) has independent access.. The Seller will not guarantee the obligations of any Person, and no Person will guarantee the obligations of the Seller. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate; and
(lm) The Seller will maintain arm’sarm's-length relationships with each of Vistra, the Servicer or any Originator ▇▇▇▇▇▇▇ (and any of their other AffiliatesAffiliate thereof). 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, Seller 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 misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity.
(mn) None of Vistra, the Servicer or other Originator ▇▇▇▇▇▇▇ shall not pay the salaries of Seller’s 's employees, if any. EXHIBIT V TERMINATION EVENTS Each of the following shall be a "Termination Event":
(i) the Seller shall fail to make the payment or deposit required to be made pursuant to Section 1.7(g), (ii) the Seller, ▇▇▇▇▇▇▇, any Originator or the Servicer shall fail to make when due any other payment or deposit to be made by it under the Agreement or any other Transaction Document within three Business Days of the date on which such other payment or deposit is due, or (iii) the Seller, ▇▇▇▇▇▇▇, any Originator or the Servicer (if ▇▇▇▇▇▇▇ or any Affiliate of Group) shall fail to perform or observe in any material respect any other term, covenant or agreement under the Agreement or any other Transaction Document and such failure shall continue for 10 Business Days after the Seller, such Originator or the Servicer shall have obtained actual knowledge or notice thereof;
(b) ▇▇▇▇▇▇▇ (or any Affiliate of Group) shall fail to transfer to any successor Servicer when required any rights pursuant to the Agreement that ▇▇▇▇▇▇▇ (or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the Seller, any Originator or ▇▇▇▇▇▇▇ (or any of their respective officers) under or in connection with the Agreement or any other Transaction Document, or any information or report (including any Monthly Report and Weekly Report) delivered by the Seller or any Originator or the Servicer pursuant to the Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered which in the sole judgment of the Agent and the Co-Agent, acting together, has had or is reasonably likely to have a Material Adverse Effect;
(d) the Servicer shall fail to deliver any Monthly Report on the related Monthly Report Date, and such failure shall remain unremedied for five Business Days, or the Servicer shall fail to deliver any Weekly Report on the related Weekly Report Date.
(ne) No Affiliate the Agreement or any purchase or reinvestment pursuant to the Agreement shall for any reason: (i) cease to create, or the Purchased Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage ownership or security interest to the extent of such Purchased Interest in each Pool Receivable, the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, or (ii) cease to create with respect to the Pool Assets, or the interests of the Seller Purchasers with respect to such Pool Assets shall advance funds tocease to be, or guaranty debts ofa valid and enforceable first priority perfected security interest, free and clear of any Adverse Claim,
(f) the Seller, except ▇▇▇▇▇▇▇ or any Originator shall generally not pay its debts as otherwise provided herein such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller, ▇▇▇▇▇▇▇ or any Originator seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the other Transaction Documents; providedcase of any such proceeding instituted against it (but not instituted by it), that an Affiliate either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the Seller may provide funds actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Seller, ▇▇▇▇▇▇▇ or any Originator shall take any corporate action to authorize any of the Seller actions set forth above in connection with its capitalization.this paragraph;
(oi) The Seller the average of the Default Ratios for any three consecutive Fiscal Months shall not guaranteeexceed 9.0% or (ii) the average of the Dilution Ratios for any three consecutive Fiscal Months shall exceed 35.0%, (iii) the average of the Loss-to-Liquidation Ratios for any three consecutive Fiscal Months shall exceed 11.0% or (iv) the greatest average of the Delinquency Ratios for any three consecutive Fiscal Months during the twelve most recent Fiscal Months shall exceed 9.0%;
(h) a Change in Control shall occur;
(i) at any time, the sum of (a) the Aggregate Capital and Total Reserves under this Agreement exceeds the sum of (x) the Net Receivables Pool Balance and (y) the aggregate Purchasers' Share of Collections then on deposit in the Collection Account (other than amounts set aside therein in respect of Discount, Fees and Servicing Fee), and such condition shall not otherwise be liablecontinue unremedied for one Business Day;
(j) any Loan Party or any of its Subsidiaries shall fail to pay any principal of or premium or interest on or any other amount payable in respect of any Debt that is outstanding in a principal or reimbursement amount (or, in the case of any Hedge Agreement, its Agreement Value) of (i) with respect to any obligation Covered Facility, at least $5,000,000 or (ii) with respect to any other Debt, at least $20,000,000 in the aggregate; in any case either individually or in the aggregate of such Loan Party or such Subsidiary (as the case may be), when the same becomes due and payable whether by scheduled maturity, required prepayment, acceleration, demand or otherwise, and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt as specified in clause (ii) and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt as specified in clause (ii) or otherwise to cause, or to permit the holder thereof to cause, such Debt as specified in clause (ii) to mature; or any such Debt as specified in clause (ii) shall be declared to be due and payable or is then required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt as specified in clause (ii) shall be then required to be made, in each case prior to the stated maturity thereof; or
(k) either: (i) a contribution failure shall occur with respect to any Benefit Plan sufficient to give rise to a lien under Section 302(f) of ERISA, (ii) the Internal Revenue Service shall file a notice of lien asserting a claim pursuant to the Internal Revenue Code with regard to any of its Affiliates.
the assets of Seller or ▇▇▇▇▇▇▇ or any ERISA Affiliate, or (piii) The Seller the Pension Benefit Guaranty Corporation shall be, at all times, adequately capitalized file a notice of lien asserting a claim pursuant to engage in the transactions contemplated in its limited liability company agreement.
(q) Each ERISA with regard to any assets 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▇▇▇▇▇▇▇ or any ERISA Affiliate.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Warnaco Group Inc /De/)
Separate Existence. Each of the Seller The Borrower and the Servicer Agent hereby acknowledges acknowledge that the Purchasers, the Purchaser Agents and the Administrator are Agent is entering into the transactions contemplated by this Agreement and the other Transaction Loan Documents in reliance upon the SellerBorrower’s identity as a legal entity separate from the Servicer, each Originator, Vistra of the Originators and their respective other Affiliates. Therefore, from and after the date hereof, each of the Seller Borrower, the Servicer and the Servicer Originators shall take all steps specifically required by this Agreement to continue the Seller’s identity as a separate legal entity and necessary to make it apparent to third Persons that the Seller Borrower is an entity with assets and liabilities distinct from those of Vistra, the Servicer, each Originator, the Originators 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 Borrower shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller Borrower will be a limited liability company whose primary activities are restricted in its LLC Agreement to: (i) purchasing, accepting capital contributions of or otherwise acquiring from the Originators and holding, selling, transferring, conveying or pledging or otherwise exercising ownership rights with respect to the Pool Assets, (ii) entering and performing its obligations in accordance with any agreement providing for the sale, transfer or pledge of Pool Assets, (iii) borrowing money, or otherwise financing, or receiving capital contributions, consistent with the provisions of the Loan Documents; (iv) pledging or otherwise granting a security interest in Pool Assets to secure such borrowing or other obligations of the Borrower; (v) entering into any agreement relating to any Accounts that provides for the administration, servicing and collection of amounts due on the Pool Assets; (vi) issuing limited liability company interests as provided for in its limited liability company agreement to (i) purchasing or otherwise acquiring from and any Originator, owning, holding, granting security interests or selling interests in Pool Assetsother securities deemed appropriate by its board of managers; (iivii) entering into agreements for taking any and all other actions necessary to maintain its existence as a limited liability company in good standing under the selling and servicing laws of the Receivables PoolState of Delaware and to qualify the Borrower to do business as a foreign entity in any other state in which such qualification is required; (viii) paying the organizational, start-up and transaction expenses of the Borrower; and (iiiix) conducting such other activities as it deems necessary engaging in any lawful act or appropriate activity and exercising any powers permitted to carry out its primary activities.limited liability companies organized under the laws of the State of Delaware that are related or incidental to and necessary, convenient or advisable for the accomplishment of the above-mentioned purposes (including the establishment of bank accounts, the entering into of Hedging Agreements and the entering into referral, management, servicing and administration agreements);
(b) The Seller Borrower shall not engage in any business or activity, or activity except as is consistent with the Loan Documents and permitted under its limited liability company agreement and shall not incur any indebtedness or liability, Indebtedness other than as expressly permitted by the Transaction Loan Documents.;
(ci) Not less than one independent manager member of the Borrower’s board of managers (the “Independent Manager”) shall be an individual a natural person who (iA) is not, and has shall not have been at the time of such Person’s appointment or at any time during the five-year period prior to his preceding five years and shall not be as long as such person is a director or her appointment as Independent Manager been, manager of the Borrower (1) a direct, indirect or beneficial ownerdirector, officer, director, employee, affiliatepartner, associate shareholder, member, manager or supplier Affiliate of Vistraany of the following Persons (collectively, the Servicer “Independent Parties”): the Servicer, any of the Originators, the Company or any of its their respective Subsidiaries or their Affiliates (other than his another special purpose entity which is a Subsidiary or her service 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 or for special purpose vehicles engaged in securitization and/or structured financing transactions, and (C) is otherwise reasonably acceptable to the Agent as evidenced in a similar capacity writing signed by the Agent. Under this clause (c), 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 such Person); and other Person in which it owns, directly or indirectly, a majority of the ownership interests.
(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 operating agreement of the Seller Borrower shall at all times provide that that: (iA) the SellerBorrower’s Manager (as defined in its limited liability company agreement) 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 Seller Borrower unless the Manager and the Independent Manager shall approve the taking of such action in writing before the taking of such action; , and (iiB) such provision and each other provision requiring an Independent Manager 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 VistraBorrower, 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.;
Appears in 1 contract
Separate Existence. Each of the Seller and the Servicer Peabody 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 Peabody and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer Peabody shall take all steps specifically required by this the Agreement or reasonably required by the Administrator 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, Peabody and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsPeabody, 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 Peabody shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited purpose limited liability company whose primary activities are restricted in its limited liability company agreement to certificate of formation to: (i) purchasing or otherwise acquiring from any Originatorthe Originators or Peabody (or their Affiliates), owning, holding, granting security interests or selling interests in Pool Assets; Assets (or other receivables originated by the Originators or their Affiliates, and certain related assets), (ii) entering into agreements for the selling and servicing of the Receivables Pool; Pool (or other receivables pools originated by the Originators or their Affiliates), and (iii) conducting such other activities as it deems are necessary or appropriate to carry out its primary such activities.;
(b) The Seller shall not engage in any business or activity, or activity except as set forth in this Agreement nor incur any indebtedness or liability, other than as expressly permitted by the Transaction Documents.;
(c) Not less than one independent manager of the Seller’s Directors (the “Independent ManagerDirector”) shall be an individual a natural person who (iA) is not, and has not at any time during for the five-year period prior to his or her appointment as Independent Manager Director has not been, a direct, indirect and during the continuation of his or beneficial owner, officerher service as Independent Director is not: (i) an employee, director, employeestockholder, affiliatemember, associate manager, partner or supplier officer of Vistrathe Seller, the Servicer Peabody or any of its or their respective Affiliates (other than his or her service as an independent manager or in a similar capacity Independent Director of any such Personthe Seller); (ii) a customer or supplier of the Seller, Peabody or any of their respective Affiliates (other than his or her service as an Independent Director of Seller); or (iii) any member of the immediate family of a person described in clause (i) or (ii) above, and (B) has, (i) prior experience as an Independent Director for a corporation or 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 (ii) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. The limited liability company agreement Such Independent Director of the Seller shall at all times have been appointed as such in strict compliance with the Seller’s LLC Agreement. The Seller’s LLC Agreement shall provide that (i) the Seller’s Manager (as defined in its limited liability company agreement) Board of Directors shall not approve, or take any other action to cause the filing of, or join in any filing of, a voluntary bankruptcy petition or insolvency petition, dissolution, liquidation, consolidation, merger, sale of all or substantially all of its assets, assignment for the benefit of creditors, admit in writing its inability to pay its debts generally as they become due, or to engage in any other business or activity with respect to the Seller unless (x) there is at least one Independent Director then serving as a director of the Manager Seller and appointed pursuant to and in strict compliance with the Seller’s LLC Agreement, and (y) all such Independent Manager Directors of the Seller shall approve have approved the taking of such action in writing before prior to the taking of such action; action and (ii) such provision cannot be amended without the prior written consent of the Independent Manager.Director and the Administrator;
(d) Upon the occurrence of any event that causes the Member to cease to be a member of the Seller (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Seller and the admission of the transferee pursuant to Sections 21 and 23 of the LLC Agreement, or (ii) the resignation of the Member and the admission of an additional member of the Seller pursuant to Sections 22 and 23 of the LLC Agreement), each person acting as an Independent Director pursuant to Section 10 of the LLC Agreement shall, without any action of any Person and simultaneously with the Member ceasing to be a member of the Seller, automatically be admitted to the Seller as a Special Member and shall continue the Seller without dissolution. No Special Member may resign from the Seller or transfer its rights as a Special Member unless (i) a successor Special Member has been admitted to the Seller as Special Member by executing a counterpart to the LLC Agreement, and (ii) such successor has also accepted its appointment as Independent Director pursuant to Section 10 of the LLC Agreement; provided, however, the Special Members shall automatically cease to be members of the Seller upon the admission to the Seller of a substitute Member.
(e) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer Peabody or any Originator or any of their respective other Affiliates.Affiliate thereof;
(ef) 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, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(fg) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer Peabody (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, it being understood that the Servicer may Peabody shall 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.;
(gh) The Seller’s operating expenses will not be paid by Vistra, the Servicer, any Originator Seller and not by Peabody or any other Affiliate thereof.;
(hi) All of the Seller’s business correspondence and other communications shall be conducted in the Seller’s own name and on its own separate stationery;
(j) The Seller’s books and records will be maintained separately from those of Vistra, the Servicer or Peabody and any Originator or other Affiliate thereof and any of their respective other Affiliates.Person;
(ik) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer Peabody or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that that: (i) such Affiliates are separate legal entities and the Seller’s assets and credit are not available to satisfy the debts and obligations a special purpose limited liability company exists as a Subsidiary of such Affiliates or any other Person Peabody, and (ii) the Seller’s Originators have sold receivables and other related assets shall be listed on to the Seller’s own separate balance sheet.Contributor, which has contributed such receivables and other related assets to such special purpose Subsidiary that, in turn, has sold such receivables and other related assets to certain financial institutions and other entities;
(jl) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer Peabody or any Originator or Affiliate thereof and any of their respective other Affiliates.Person;
(km) The Seller will strictly observe corporate organizational formalities in its dealings with Vistra, the Servicer Peabody or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer Peabody or any Originator or any of their respective other Affiliates Affiliate thereof except as permitted by this Agreementthe Agreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer Peabody or any Originator Affiliate thereof or any of their respective other Affiliates Person has independent access., and the Seller shall use separate invoices and checks from any other Person. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of Peabody or any Subsidiary or other Affiliate of Peabody (other than the Seller). The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(ln) The Seller will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator Peabody (and any of their other AffiliatesAffiliate thereof). 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, Seller nor the Servicer or any Originator, on the other, Peabody 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 Peabody will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity.;
(mo) None of Vistra, the Servicer or other Originator Peabody shall not 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 does not and will not hold itself responsible for the obligations of any other Person, and shall be, at all times, adequately capitalized to engage in not guarantee or become liable for the transactions contemplated in its limited liability company agreement.debts of any other Person;
(q) The Seller will conduct its business in its own name and shall hold itself out as a separate entity from any other Person;
(r) The Seller shall maintain a sufficient number of employees and adequate capital in light of its contemplated business activities;
(s) The Seller shall not acquire the obligations or securities of any of its members;
(t) The Seller will remain a wholly-owned subsidiary of a United States person (within the meaning of Section 7701(a)(30) of the Internal Revenue Code) and not be subject to withholding under Section 1446 of the Internal Revenue Code, and no action will be taken that would cause the Seller to (i) be treated other than as a “disregarded entity” within the meaning of U.S. Treasury Regulation § 301.7701-3 for U.S. federal income tax purposes or (ii) become an association taxable as a corporation or a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; and
(u) The Seller shall not pledge its assets for the benefit of any other Person or make any loans or advances to any other Person, except pursuant to the Transaction Documents. 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 following shall be a “Termination Event”:
(i) the Seller, Peabody, any Originator or the Servicer (if Peabody or any of its Affiliates) shall fail to perform or observe any term, covenant or agreement under the Agreement (other than those terms, covenants or agreements contained in Exhibit IV, Sections 1(a), 1(l) (except clause (iv) thereof), 2(a), and 2(l) (except clause (viii) thereof)) or any other Transaction Document and, except as otherwise provided herein, such failure shall continue for five consecutive Business Days after knowledge or notice thereof, (ii) the Seller or the Servicer shall fail to make when due any payment or deposit to be made by it under the Agreement and such failure shall continue unremedied for one Business Day, (iii) Peabody shall resign as Servicer, and no successor Servicer reasonably satisfactory to the Administrator shall have been appointed, or (iv) the Seller, Peabody, any Originator or the Servicer (if Peabody or any of its Affiliates) shall fail to perform or observe any term covenant or agreement in any of Exhibit IV, Sections 1(a), 1(l) (except clause (iv) thereof), 2(a), or 2(l) (except clause (viii) thereof) and, except as otherwise provided herein, such failure shall continue for thirty days after knowledge or notice thereof;
(b) Peabody (or any Affiliate thereof) shall fail to transfer to any successor Servicer when required any rights pursuant to the Agreement that Peabody (or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the Seller, Peabody or any Originator (or any of their respective officers) under or in connection with this the Agreement or any other Transaction Document, or any information or report delivered by the Seller, Peabody or any Originator or the Servicer pursuant to the Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered, and shall remain incorrect or untrue for 10 Business Days after notice to the Seller or the Servicer of such inaccuracy;
(d) the Seller or the Servicer shall fail to deliver the Information Package pursuant to the Agreement, and such failure shall remain unremedied for two Business Days;
(e) the Agreement or any Investment or Reinvestment pursuant to the Agreement shall for any reason: (i) cease to create a valid and enforceable perfected ownership or security interest in each Pool Receivable, the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, or (ii) cease to create with respect to the Pool Assets, or the interest of the Administrator with respect to such Pool Assets shall cease to be, a valid and enforceable first priority perfected ownership or security interest, free and clear of any Adverse Claim;
(f) the Seller, Peabody or any Originator shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller, Peabody or any Originator seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to substantive consolidation issuesbankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Seller, Peabody or any Originatoror the Seller shall take any corporate or organizational action to authorize any of the actions set forth above in this paragraph;
(g) (i) the (A) Default Ratio shall exceed 2.25% or (B) the Delinquency Ratio shall exceed 4.50% or (ii) the average for three consecutive calendar months of: (A) the Default Ratio shall exceed 1.75%, (B) the Delinquency Ratio shall exceed 3.50% or (C) the Dilution Ratio shall exceed 2.50%;
(h) a Change in Control shall occur;
(i) at any time the Purchased Assets Coverage Percentage exceeds 100%, and in such circumstance shall not have been cured within two Business Days;
(i) the certificates accompanying such opinion, remain true and correct in all material respects at all times.oc
Appears in 1 contract
Sources: Receivables Purchase Agreement (Peabody Energy Corp)
Separate Existence. Each (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the Seller entity with which such persons are concerned, and shall use its best efforts to avoid the Servicer hereby acknowledges appearance that it is conducting business on behalf of any Affiliate thereof or that the Purchasers, assets of the Purchaser Agents Borrower are available to pay the creditors of any of its equityholders or any Affiliate thereof.
(a) It shall maintain records and books of account separate from those of any other Person.
(b) It shall pay its own operating expenses and liabilities from its own funds.
(c) It shall ensure that the Administrator are entering into annual financial statements of the Equityholder shall disclose the effects of the transactions contemplated by this Agreement hereby in accordance with GAAP.
(d) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(e) It shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(f) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(g) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(h) It shall not amend, supplement or otherwise modify the Special Purpose Provisions contained in its organizational documents (as defined therein), except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned).
(i) It shall at all times hold itself out to the public and all other Transaction Documents in reliance upon the Seller’s identity Persons as a legal entity separate from the Servicer, each Originator, Vistra its member and their respective from any other Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer Person.
(j) It shall take all steps specifically required by this Agreement to continue the Seller’s identity as a file its own tax returns 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, except to the extent that it is treated as a “disregarded entity” for tax purposes and is not a division required to file tax returns under Applicable Law, and shall pay any taxes required to be paid under Applicable Law.
(k) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(l) It shall maintain separate financial statements, showing its assets and liabilities separate and apart from those of Vistra, the Servicer, the Originators, any other Person and not have its or their respective other Affiliates or assets listed on any financial statement of any other Person. Without limiting the generality of the foregoing and ; provided, that its assets may be included 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 consolidated financial statement 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 Affiliate provided that (i) the Seller’s Manager (as defined in its limited liability company agreement) appropriate notation 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 made 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 (if any) to indicate its separateness from such Affiliate and to indicate that (i) such Affiliates are separate legal entities and the Seller’s its assets and credit are not available to satisfy the debts and other obligations of such Affiliates Affiliate or any other Person and (ii) the Seller’s such assets shall also be listed on the Seller’s its own separate balance sheet.
(jm) The Seller’s assets will be maintained It shall not, except for capital contributions or capital distributions permitted under the terms and conditions of its organizational documents and properly reflected on its books and records, enter into any transaction with an Affiliate except on commercially reasonable terms similar to those available to unaffiliated parties in a manner that facilitates their identification and segregation from those of Vistra, the Servicer or any Originator or any of their respective other Affiliatesan arm’s-length transaction.
(kn) The Seller will strictly observe corporate formalities It shall maintain a sufficient number of employees (which number may be zero) in light of its dealings with Vistracontemplated business purpose and pay the salaries of its own employees, the Servicer or any Originator or any of their respective other Affiliatesif any, 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 accessonly from its own funds.
(lo) The Seller will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator It shall use separate invoices bearing its own name.
(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 p) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(q) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not require its members to make additional capital contributions.
(r) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with respect the Transaction Documents.
(s) It shall 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 it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(t) It shall not, to the foregoingfullest extent permitted by law, and they will engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(u) It shall not operate buy or purport to operate hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as an integrated economic unit with respect to each other expressly contemplated by the Transaction Documents.
(v) Except as expressly permitted by the Transaction Documents (which includes, for the avoidance of doubt, REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in their dealing with any other entity.
(mw) None of Vistra, It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Servicer or other Originator shall pay the salaries of Seller’s employees, if anyTransaction Documents.
(nx) No Affiliate of It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by 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.
(oy) The Seller It shall not guarantee, allocate fairly and shall not otherwise be liable, reasonably any overhead expenses that are shared with respect to any obligation of any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(pz) The Seller Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of S▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & B▇▇▇▇▇▇ LLP, dated the date hereof, relating to certain nonconsolidation matters.
(aa) Neither the Investment Manager nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior unanimous written consent of the Independent Manager. The organizational documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at all timesleast one Independent Manager; (b) the Borrower shall not, adequately capitalized to engage in without the transactions contemplated in its limited liability company agreement.
(q) Each prior written consent of the Seller Independent Manager, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Servicer will take Independent Manager shall consider only the interests of the Borrower, including its creditors; and (d) the Independent Manager of the Borrower may not be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of the Independent Manager, together with a statement as to the reasons for such other actions as are necessary on its part to ensure removal, and (ii) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the facts and assumptions requirements set forth in the opinion issued by Sidley Austin LLP, as counsel organizational documents of the Borrower for the Seller, in connection with this Agreement relating to substantive consolidation issues, Independent Manager. No resignation or removal of the Independent Manager shall be effective until a successor Independent Manager is appointed and in the certificates accompanying such opinion, remain true and correct in all material respects at all timeshas accepted his or her appointment. The Independent Manager may not be removed other than for Cause.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (TCP Capital Corp.)
Separate Existence. Each of the Seller Borrowers and the Servicer hereby acknowledges that the PurchasersLenders, the Purchaser Managing Agents and the Administrator Administrative Agent are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Sellereach Borrower’s identity as a legal entity separate from the Servicer, each Originator, Vistra Herc and their respective other Affiliates. Therefore, from and after the date hereof, each of the Seller Borrowers and the Servicer shall take all steps specifically required by this Agreement to continue the Sellereach Borrower’s identity as a separate legal entity and to make it apparent to third Persons that the Seller such Borrower is an entity with assets and liabilities distinct from those of VistraHerc, the Servicer, each Originator, and any other Person, and is not a division of VistraHerc, 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 Borrowers and the Servicer shall take such actions as shall be required in order to ensure each of the following until the Final Termination Facility Maturity Date:
(a) The Seller US Borrower 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 Assetsthe Collateral; (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. The Canadian Borrower will be an unlimited liability company whose primary activities are restricted in its articles of incorporation to (i) purchasing or otherwise acquiring from any Originator, owning, holding, granting security interests or selling interests in the Collateral; (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 Borrowers 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”) or independent director (the “Independent Director”), as the case may be, shall be an individual who (i) is not, and has not at any time during the five-five (5) year period prior to his or her appointment as Independent Manager or Independent Director, as applicable, been, a direct, indirect or beneficial owner, officer, director, employee, affiliate, associate or supplier of VistraHerc, the Servicer or any of its or their Affiliates (other than his or her service as an independent manager or director or in a similar capacity of any such Person); and (ii) has at least three (3) 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 US Borrower, and the constating documents of the Canadian Borrower, shall at all times provide that (i) the Sellersuch Borrower’s Manager (as defined in its limited liability company agreementagreement or such ▇▇▇▇▇▇▇▇’s Director (as defined in the constating documents of the Canadian Borrower) shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Seller such Borrower unless the Manager and the Independent Manager or the Director and the Independent Director, as applicable, 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 ManagerManager or Independent Director, as applicable.
(d) The Neither the Independent Manager nor Independent Director of a Borrower shall not at any time serve as a trustee in bankruptcy for the Sellereither Borrower, VistraHerc, the Servicer or any Originator or any of their respective other Affiliates.
(e) Any employee, consultant or agent of the Seller Borrowers will be compensated from the Seller’s Borrowers’ funds for services provided to the SellerBorrowers. The Seller Borrowers will not engage any agents other than its their attorneys, auditors, other professionals, a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool.
(f) The Seller Borrowers will contract with the Servicer, to perform for the Seller Borrowers all operations required on a daily basis to service the Receivables Pool. The Seller Borrowers will pay the Servicer the Servicing Fee pursuant to the Transaction Documents. Except as otherwise permitted by this Agreement, the Seller Borrowers will not incur any material indirect or overhead expenses for items shared with Vistra Herc or the Servicer (or any other Affiliate thereof) that are not reflected in the Servicing Fee. To the extent, if any, that the Seller Borrowers (or any Affiliate thereof) shares share 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 Borrowers’ operating expenses will not be paid by VistraHerc, the Servicer, any Originator or any other Affiliate thereof.
(h) The Seller’s Borrowers’ books and records will be maintained separately from those of VistraHerc, the Servicer or any Originator or any of their respective other Affiliates.
(i) The Seller’s Borrowers’ assets shall not be included in the consolidated financial statements of VistraHerc, 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 Borrowers’ assets and credit are not available to satisfy the debts and obligations of such Affiliates or any other Person and (ii) the Seller’s Borrowers’ assets shall be listed on the Seller’s Borrowers’ own respective separate balance sheetsheets.
(j) The Seller’s Borrowers’ assets will be maintained in a manner that facilitates their identification and segregation from those of VistraHerc, the Servicer or any Originator or any of their respective other Affiliates.
(k) The Seller Borrowers will strictly observe corporate formalities in its dealings with VistraHerc, the Servicer or any Originator or any of their respective other Affiliates, and ensure that funds or other assets of the Seller Borrowers are not commingled with those of VistraHerc, the Servicer or any Originator or any of their respective other Affiliates except as permitted by this Agreement. The Seller Borrowers shall not maintain joint bank accounts or other depository accounts to which VistraHerc, the Servicer or any Originator or any of their respective other Affiliates has independent access.
(l) The Seller Borrowers will maintain arm’s-length relationships with each of VistraHerc, the Servicer or any Originator (and any of their other Affiliates). Any Other than with respect to certain services to be provided during the continuation of an Event of Default in accordance with Section 7.5(b), any Person that renders or otherwise furnishes services to the Seller Borrowers will be compensated by the Seller Borrowers at market rates for such services it renders or otherwise furnishes to the SellerBorrowers. Neither the SellerBorrower, 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 Borrowers 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 VistraHerc, the Servicer or other Originator shall pay the salaries of Seller’s the Borrowers’ employees, if any.
(n) No Affiliate of the Seller Borrowers shall advance funds to, or guaranty debts of, the SellerBorrowers, except as otherwise provided herein or in the other Transaction Documents; provided, that an Affiliate of the Seller Borrowers may provide funds to the Seller Borrowers in connection with its capitalization.
(o) The Seller Borrowers shall not guarantee, and shall not otherwise be liable, with respect to any obligation of any of its AffiliatesAffiliates other than as provided in this Agreement or the other Transaction Documents.
(p) The Seller Borrowers shall be, at all times, adequately capitalized to engage in the transactions contemplated in its their respective limited liability company agreementagreements.
(q) The consolidated financial statements of Herc Parent shall contain notes clearly stating that the Borrowers are separate legal entities and the Borrowers’ assets and credit are not available to satisfy the debts and obligations of Herc Parent, Herc, any Originator, any Servicer or any other Person.
(r) Each of the Seller Borrowers 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 opinions issued by Sidley Austin ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, as counsel for the SellerBorrowers, the Servicer and the Performance Guarantor, and ▇▇▇▇▇▇▇▇ LLP, as special Canadian counsel for the Borrowers, the Servicer and the Performance Guarantor, 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.. Each of the following shall be a “Event of Default”
(i) except as otherwise provided herein, either Borrower, any Originator or the Servicer shall fail to perform or observe any term, covenant or agreement under this Agreement or any other Transaction Document and such failure shall continue for thirty (30) days after knowledge of, or notice thereof to, such Borrower, such Originator or the Servicer, as applicable; (ii) either Borrower or the Servicer shall fail to make when due any payment or deposit required to be made by it under this Agreement and such failure shall continue unremedied for two (2) Business Days; or (iii) Herc shall resign as Servicer, and no successor Servicer reasonably satisfactory to the Administrative Agent shall have been appointed;
(b) either Borrower shall fail to comply with the requirements of Section 7.3 and such failure shall continue for two (2) Business Days;
(c) any representation or warranty made or deemed made by either Borrower, any Originator, the Performance Guarantor or the Servicer (or any of their respective officers) in this Agreement or any other Transaction Document to which it is a party, or any information or report delivered by either Borrower, any Originator, the Performance Guarantor or the Servicer pursuant to this Agreement or any other Transaction Document to which it is a party shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered, and shall remain incorrect or untrue for thirty (30) days after notice thereof to the Borrowers, the Performance Guarantor or the Servicer, as applicable;
(d) the Servicer shall fail to deliver when due any Information Package required to be delivered by it pursuant to this Agreement, and such failure shall remain unremedied for five (5) Business Days;
(e) the Administrative Agent, for the benefit of each Lender Group, shall for any reason not have a First Priority Interest in the Pool Receivables, the Related Security, the Collections, the Collection Accounts and the Concentration Accounts;
(f) either Borrower, any Originator, the Performance Guarantor or the Servicer shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against either Borrower, any Originator, the Performance Guarantor or the Servicer seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of sixty (60) days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or either Borrower, any Originator, the Performance Guarantor or the Servicer shall take any corporate action to authorize any of the actions set forth above in this paragraph;
(g) (i) the average for three (3) consecutive Settlement Periods of (A) the Default Ratio shall exceed six and one-quarter percent (6.25%); (B) the Delinquency Ratio shall exceed fourteen and three-quarters percent (14.75%); or (C) the Dilution Ratio shall exceed three and three-quarters percent (3.75%); or (ii) Days Sales Outstanding shall exceed seventy-five (75) days;
(h) a Change in Control shall occur;
(i) the sum of (i) the Aggregate Advance Principal Balance at any time plus (ii) the Total Reserves at such time, exceeds the sum of (A) the Net Receivables Pool Balance at such time plus, without duplication, (B) the amount of Collections on deposit in the Collection Accounts and the Concentration Accounts at such time (other than amounts set aside therein representing Accrued Interest and fees) for two (2) consecutive Business Days;
(i) either Borrower shall fail to pay any principal or premium or interest on any of its Debt when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement, mortgage, indenture or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement, mortgage, indenture or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement, mortgage, indenture or instrument (without giving effect to any waiver of such defaults under the applicable agreement, mortgage, indenture or instrument), if, in either case: (A) the effect of such non-payment, event or condition is to give the applicable debtholders the right (whether acted upon or not) to accelerate the maturity of such Debt; or (B) any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Debt shall be required to be made, in each case before the stated maturity thereof; or
(ii) (x) the Performance Guarantor, any Originator, the Servicer or any of their respective Subsidiaries (other than the Borrowers) shall fail to pay any principal of or premium or interest on any of its Debt that is outstanding in a principal amount of at least $300,000,000, in the case of the Performance Guarantor, or $300,000,000, in the case of any Originator or the Servicer, in each case, in the aggregate, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement, mortgage, indenture or instrument relating to such Debt; or (y) any other default in the observance or performance of
Appears in 1 contract
Sources: Receivables Financing Agreement (Herc Holdings Inc)
Separate Existence. Each of the Seller and the Servicer Peabody 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 Peabody and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer Peabody shall take all steps specifically required by this the Agreement or reasonably required by the Administrator 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, Peabody and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsPeabody, 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 Peabody shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited purpose limited liability company whose primary activities are restricted in its limited liability company agreement to certificate of formation to: (i) purchasing or otherwise acquiring from any Originatorthe Originators or Peabody (or their Affiliates), owning, holding, granting security interests or selling interests in Pool Assets; Assets (or other receivables originated by the Originators or their Affiliates, and certain related assets), (ii) entering into agreements for the selling and servicing of the Receivables Pool; Pool (or other receivables pools originated by the Originators or their Affiliates), and (iii) conducting such other activities as it deems are necessary or appropriate to carry out its primary such activities.;
(b) The Seller shall not engage in any business or activity, or activity except as set forth in this Agreement nor incur any indebtedness or liability, other than as expressly permitted by the Transaction Documents.;
(c) Not less than one independent manager of the Seller’s Directors (the “Independent ManagerDirector”) shall be an individual a natural person who (iA) is not, and has not at any time during for the five-year period prior to his or her appointment as Independent Manager Director has not been, a direct, indirect and during the continuation of his or beneficial owner, officerher service as Independent Director is not: (i) an employee, director, employeestockholder, affiliatemember, associate manager, partner or supplier officer of Vistrathe Seller, the Servicer Peabody or any of its or their respective Affiliates (other than his or her service as an independent manager or in a similar capacity Independent Director of any such Personthe Seller); (ii) a customer or supplier of the Seller, Peabody or any of their respective Affiliates (other than his or her service as an Independent Director of Seller); or (iii) any member of the immediate family of a person described in clause (i) or (ii) above, and (B) has, (i) prior experience as an Independent Director for a corporation or 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 (ii) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. The limited liability company agreement Such Independent Director of the Seller shall at all times have been appointed as such in strict compliance with the Seller’s LLC Agreement. The Seller’s LLC Agreement shall provide that (i) the Seller’s Manager (as defined in its limited liability company agreement) Board of Directors shall not approve, or take any other action to cause the filing of, or join in any filing of, a voluntary bankruptcy petition or insolvency petition, dissolution, liquidation, consolidation, merger, sale of all or substantially all of its assets, assignment for the benefit of creditors, admit in writing its inability to pay its debts generally as they become due, or to engage in any other business or activity with respect to the Seller unless (x) there is at least one Independent Director then serving as a director of the Manager Seller and appointed pursuant to and in strict compliance with the Seller’s LLC Agreement, and (y) all such Independent Manager Directors of the Seller shall approve have approved the taking of such action in writing before prior to the taking of such action; action and (ii) such provision cannot be amended without the prior written consent of the Independent Manager.Director and the Administrator;
(d) Upon the occurrence of any event that causes the Member to cease to be a member of the Seller (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Seller and the admission of the transferee pursuant to Sections 21 and 23 of the LLC Agreement, or (ii) the resignation of the Member and the admission of an additional member of the Seller pursuant to Sections 22 and 23 of the LLC Agreement), each person acting as an Independent Director pursuant to Section 10 of the LLC Agreement shall, without any action of any Person and simultaneously with the Member ceasing to be a member of the Seller, automatically be admitted to the Seller as a Special Member and shall continue the Seller without dissolution. No Special Member may resign from the Seller or transfer its rights as a Special Member unless (i) a successor Special Member has been admitted to the Seller as Special Member by executing a counterpart to the LLC Agreement, and (ii) such successor has also accepted its appointment as Independent Director pursuant to Section 10 of the LLC Agreement; provided, however, the Special Members shall automatically cease to be members of the Seller upon the admission to the Seller of a substitute Member.
(e) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer Peabody or any Originator or any of their respective other Affiliates.Affiliate thereof;
(ef) 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, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(fg) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer Peabody (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, it being understood that the Servicer may Peabody shall 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.;
(gh) The Seller’s operating expenses will not be paid by Vistra, the Servicer, any Originator Seller and not by Peabody or any other Affiliate thereof.;
(hi) All of the Seller’s business correspondence and other communications shall be conducted in the Seller’s own name and on its own separate stationery;
(j) The Seller’s books and records will be maintained separately from those of Vistra, the Servicer or Peabody and any Originator or other Affiliate thereof and any of their respective other Affiliates.Person;
(ik) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer Peabody or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that that: (i) such Affiliates are separate legal entities and the Seller’s assets and credit are not available to satisfy the debts and obligations a special purpose limited liability company exists as a Subsidiary of such Affiliates or any other Person Peabody, and (ii) the Seller’s Originators have sold receivables (or beneficial interests therein) and other related assets shall be listed on to the Seller’s own separate balance sheet.Contributor, which has contributed such receivables (or beneficial interests therein) and other related assets to such special purpose Subsidiary that, in turn, has sold such receivables (or beneficial interests therein) and other related assets to certain financial institutions and other entities;
(jl) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer Peabody or any Originator or Affiliate thereof and any of their respective other Affiliates.Person;
(km) The Seller will strictly observe corporate organizational formalities in its dealings with Vistra, the Servicer Peabody or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer Peabody or any Originator or any of their respective other Affiliates Affiliate thereof except as permitted by this Agreementthe Agreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer Peabody or any Originator Affiliate thereof or any of their respective other Affiliates Person has independent access., and the Seller shall use separate invoices and checks from any other Person. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of Peabody or any Subsidiary or other Affiliate of Peabody (other than the Seller). The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(ln) The Seller will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator Peabody (and any of their other AffiliatesAffiliate thereof). 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, Seller nor the Servicer or any Originator, on the other, Peabody 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 Peabody will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity.;
(mo) None of Vistra, the Servicer or other Originator Peabody shall not 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 does not and will not hold itself responsible for the obligations of any other Person, and shall be, at all times, adequately capitalized to engage in not guarantee or become liable for the transactions contemplated in its limited liability company agreement.debts of any other Person;
(q) Each of the The Seller will conduct its business in its own name and the Servicer will take such shall hold itself out as a separate entity from any 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.Person;
Appears in 1 contract
Sources: Receivables Purchase Agreement (Peabody Energy Corp)
Separate Existence. Each of the Seller and the Servicer hereby acknowledges that the Purchasers, the Purchaser Agents and the Administrator Agent are entering into the transactions contemplated by this the Agreement and the other Transaction Documents in reliance upon the each Seller’s identity as a legal entity separate from the each Servicer, Manitowoc and each Originator, Vistra and their respective other Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer shall at all times take all reasonable steps specifically required by this Agreement to continue the each Seller’s identity as a separate legal entity and to make it apparent to third Persons that the such Seller is an entity with assets and liabilities distinct from those of Vistra, the any Servicer, each OriginatorManitowoc, any Originator and any other Person, and is not a division of Vistra, the any Servicer, the OriginatorsManitowoc, its or their respective other Affiliates or any Originator and any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants covenant set forth hereinin paragraph (a) of this Exhibit IV, 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 Datethat:
(ai) The Each Seller will be a limited liability purpose company whose primary sole activities are restricted in its limited liability company agreement (or its other organizational documents serving a similar purpose) to (i) purchasing or otherwise acquiring Receivables from any Originatorthe Originators, owning, holding, granting security interests or selling interests in Pool Assets; (ii) entering into agreements for the servicing of such Receivables, selling and servicing of pledging or assigning, as applicable, such Receivables (and related Pool Assets) as contemplated by the Receivables Pool; Agreement and (iii) conducting such other activities as it deems necessary or appropriate to carry out its primary activities.purpose;
(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.
(cii) Not less than one independent manager member of each Seller’s Board of Directors (the “Independent ManagerDirector”) shall be an individual who (iA) is not, and has not at any time during the five-year period (1) 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 experience as an independent manager Independent Director for a corporation or in limited liability company whose organizational documents required the unanimous consent of all Independent Directors thereof before such entity could consent to the institution of bankruptcy or insolvency proceedings against it or could file a similar capacity of petition seeking relief under any such Person); applicable federal or state law relating to bankruptcy and (ii2) has at least three years of employment experience and is currently employed with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities and who are not (except as members of a Seller’s Board of Directors) direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of any Seller, Manitowoc or any Originator or any of their respective Affiliates (B) is not, and has not been for a period of five years prior to his or her appointment as an Independent Director of such Seller: (1) a director, officer, employee, partner, manager, attorney, supplier or customer of Manitowoc or any Affiliate thereof, (2) a stockholder (whether direct, indirect or beneficial), associate, advisor or supplier of Manitowoc or any Affiliate thereof, (3) a person related to any person referred to in clauses (1) or (2) above, (4) a person or other entity controlling or under common control with any such stockholder, partner, manager, customer, supplier, employee, officer or director or (5) a trustee, conservator or receiver for any member of Manitowoc or any Affiliate thereof (it being understood that, as used in this definition, “control” means the possession directly or indirectly of the power to direct or cause the direction of management policies or activities of a person or entity whether through ownership of voting securities, by contract or otherwise); provided, however, that an individual shall not be deemed to be ineligible to be an Independent Director solely because such individual serves or has served in the capacity of an “independent director” or similar capacity for special purpose entities formed by Manitowoc or any of its Affiliates and (C) is agreed to by the Agent. The limited liability company agreement (or other organizational documents serving a similar purpose) of the each Seller shall at all times provide that (i) the that such Seller’s Manager (as defined in its limited liability company agreement) Board of Directors shall not approve, or take any other action to cause the filing of, commencement of a voluntary bankruptcy petition case or other proceeding with respect to such Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for such Seller unless the Manager and in each case the Independent Manager Director shall approve the taking of such action in writing before prior to the taking of such action; , (ii) for the same definition of “Independent Director” as used herein and (iii) that the provisions required by clauses (i) and (ii) such provision above cannot be amended without the prior written consent of each Independent Director and the Agent. The Independent Manager.Director’s fiduciary duty shall be to such Seller (and its creditors) and not to such Seller’s members or other equityholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of a Seller, there shall be selected a replacement Independent Director who (x) shall not be an individual within the proscriptions of the first sentence of this subparagraph (ii) or any individual who has any other type of professional relationship with such Seller, Manitowoc or any Originator or any of their respective Affiliates or any management personnel of any such Person or Affiliate and (y) shall be acceptable to the Agent;
(diii) The No Independent Manager Director 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.Affiliate thereof;
(eiv) Any employee, consultant or agent of the any Seller will be compensated from the such Seller’s funds own bank accounts for services provided to such Seller except as provided herein in respect of the SellerServicing Fee. The No 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.Receivables, which servicer will be fully compensated for its services to such Seller by payment of the Servicing Fee;
(fv) The No 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 between such Seller and the Servicer (Originators or any other Affiliate thereof) that thereof which are not reflected in the Servicing FeeFee or otherwise appropriately allocated between such Persons based on usage in accordance with the next sentence. To the extent, if any, that any Seller and the Seller (Originators or any Affiliate thereof) shares thereof share items of expenses not reflected in the Servicing Fee or the manager’s feeFee, 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, it being understood that the Servicer may Manitowoc shall pay all (or any portion of) the expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legalincluding, agency without limitation, legal and other fees.;
(gvi) The No Seller’s operating expenses will not be paid by Vistra, the Servicer, any Originator or any other Affiliate thereof.thereof unless such Seller shall have agreed in writing with such Person promptly to reimburse such Person for any such payments;
(hvii) The Each Seller will have its own separate mailing address and stationery;
(viii) Each Seller’s books and records will be maintained separately from those of Vistrathe Servicers, Manitowoc and the Servicer Originators or any respective Affiliate thereof;
(ix) Any financial statements of any Servicer, Manitowoc, any Originator or any of their respective other Affiliates.
(i) The Seller’s assets shall not be included in the Affiliate thereof which are 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 to include a Seller will contain detailed notes clearly stating that (i) such Affiliates are Seller is a separate legal entities corporate entity and the has sold and assigned ownership interests in such 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.accounts receivable;
(jx) The Each Seller’s assets will be maintained in a manner that facilitates their identification identifies and segregation segregates them from those of Vistrathe Servicers, Manitowoc, the Servicer or any Originator or Originators and any of their respective other Affiliates.;
(kxi) The Each Seller will strictly observe corporate limited liability company formalities in its dealings with Vistrathe Servicers, Manitowoc, the Servicer or Originators and any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistrathe Servicers, Manitowoc, the Servicer Originators or any Originator or any of their respective other Affiliates except as permitted by this AgreementAffiliate thereof. The No Seller shall not maintain joint bank accounts or other depository accounts to which Vistrathe Servicers, Manitowoc, the Servicer Originators or any respective Affiliate thereof (other than Manitowoc or any Affiliate thereof in their capacities as Servicers) has independent access. No Seller’s funds will at any time be pooled with any funds of the Servicers, Manitowoc, the Originators or any respective Affiliate thereof;
(xii) Each Seller shall pay to the Originators the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers such Seller and any Affiliate thereof, but such Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Servicers, Manitowoc, the Originators or any respective Affiliate thereof; and
(xiii) Each Seller will maintain arm’s length relationships with the Servicers, Manitowoc, the Originators and any respective Affiliate thereof and, except as contemplated by the Transaction Documents, will have no other dealings, contractual, financial or otherwise, among themselves. 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 Affiliate thereof that renders or otherwise furnishes services to the any Seller will be compensated by the such Seller at market rates for such services it renders or otherwise furnishes to the Sellerservices. Neither the No Seller, on the one hand, nor the Servicer Originator or any Originator, on the other, Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other. 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 Each 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 cause the facts and assumptions relating to such Seller, and each Servicer shall cause the facts and assumptions relating to the Servicer, in each case set forth in the opinion issued opinions rendered by Sidley Austin ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, as counsel for ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLC, ▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ pursuant to Exhibit II to the Seller, in connection with this Agreement and relating to substantive true sale and non-consolidation issuesmatters, and in the officer’s certificates accompanying referred to in such opinionopinions, to remain true and correct in all material respects at all times.
Appears in 1 contract
Separate Existence. Each of the Seller Originators and the Servicer SPV Purchaser hereby acknowledges that the Purchasers, the Purchaser Agents Purchasers and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Seller’s SPV Purchaser's identity as a legal entity separate from each of the Servicer, each Originator, Vistra and their respective other AffiliatesOriginators. Therefore, from and after the date hereof, each of the Seller and the Servicer shall Originators shall, take all steps specifically required by this Agreement necessary to continue the Seller’s SPV Purchaser's identity as a separate legal entity and to make it apparent to third Persons that the Seller SPV Purchaser is an entity with assets and liabilities distinct from those of Vistra, each of the Servicer, each Originator, Originators and any other Person, and is not a division of Vistra, the Servicer, the Originators, its or their respective other Affiliates any Originator or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth hereinforegoing, each of the Seller Originators and the Servicer shall take such actions as shall be required in order to ensure each of the following until the Final Termination DateSPV Purchaser agrees that:
(a) The Seller SPV Purchaser will be a limited purpose limited liability company whose primary activities are restricted in its limited liability company agreement certificate of formation to (i) purchasing or otherwise acquiring from any OriginatorOriginators, owning, holding, granting security interests interests, or selling interests 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.. The SPV Purchaser shall observe all company procedures required by the Certificate of Organization, its limited liability company agreement and the limited liability law of the State of Delaware. All distributions of the SPV Purchaser will be paid and declared in accordance with the law of the State of Delaware;
(b) The Seller SPV Purchaser shall not engage in any business or activity, or incur any indebtedness or liability, liability other than as expressly permitted by the Transaction Documents.;
(c) The business and affairs of the SPV Purchaser are and will be managed by or under the direction of the SPV Purchaser's Board of Managers. The SPV Purchaser at all times will ensure that the Board of Managers duly authorizes all company actions requiring authorization by its Board of Managers. When necessary, the SPV Purchaser will obtain proper authorization from Feed as its sole member for company action. The officers and managers of the SPV Purchaser shall make decisions with respect to the business and daily operations of the SPV Purchaser independent of and not dictated by Feed or any other Originator. In addition, the SPV Purchaser shall ensure that its officers and managers will adhere to all statutes, rules, by-laws or other obligations regarding conflicts of interest and participation in decision-making by officers and managers who may have a conflict of interest with respect to the subject matter of the decision;
(d) Not less fewer than one independent manager (1) member of the “Independent Manager”) SPV Purchaser's Board of Managers 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 securitiesManager. The limited liability company agreement certificate of formation of the Seller SPV Purchaser shall at all times provide that (i) the Seller’s Manager (as defined in its limited liability company agreement) SPV Purchaser's Board of Managers shall not approve, or nor take any other action to cause the filing of, a voluntary bankruptcy petition or a merger or dissolution with respect to the Seller SPV Purchaser unless the Manager and the Independent Manager shall approve the taking of such action in writing before prior to the taking of such action; action and (ii) such provision cannot be amended without the prior written consent of the Independent Manager.;
(de) The Independent Manager shall not at any time serve as a trustee in bankruptcy for the SellerSPV Purchaser, VistraFeed, the Servicer or any other Originator or any of their respective other Affiliates.Affiliate thereof;
(ef) Any employee, consultant or agent of the Seller SPV Purchaser will be compensated from the Seller’s SPV Purchaser's funds for services provided to the SellerSPV Purchaser. The Seller SPV Purchaser will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent Servicer as contemplated by the Transaction Documents RPA for the Receivables Pool., which Servicer will be fully compensated for its services by payment of the Servicer's Fee and a manager, which manager will be fully compensated from the SPV Purchaser's funds;
(fg) 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 SPV Purchaser will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer Feed (or any other Originator or Affiliate thereof) that which are not reflected in the Servicing Servicer's Fee. To the extent, if any, that the Seller SPV Purchaser (or any other Affiliate thereof) shares items of expenses not reflected in the Servicing Servicer's Fee or the manager’s '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, it being understood that the Servicer may Feed shall pay all (or any portion of) the expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legalincluding, agency without limitation, legal and other fees.;
(gh) The Seller’s SPV Purchaser will pay fair market rent for any office space shared with any Originator and a fair share of any overhead costs. The SPV Purchaser's operating expenses will not be paid by Vistra, the ServicerFeed, any other Originator or any other Affiliate thereof.
(h) . The Seller’s books SPV Purchaser shall pay from its own separate assets all material liabilities incurred by it, including the wages and records salaries of its officers and all material administrative expenses. The SPV Purchaser will be maintained separately from those reimburse the applicable Originator for its allocable portions of Vistra, the Servicer or any Originator or any of their respective other Affiliates.shared expenses;
(i) The Seller’s assets SPV Purchaser will have its own stationery and an address and telephone number separate and distinct from the address and telephone number of any of the Originators. The SPV Purchaser will continue to conduct its business solely in its own name so as not to mislead others as to the identity of the SPV Purchaser. All oral and written communications, including without limitation letters, invoices, purchase orders, contracts, statements and applications, shall be made solely in the name of the SPV Purchaser if related to the SPV Purchaser, or an Originator if related to such Originator, and shall not be included made in the consolidated financial statements name of Vistra, the Servicer or any SPV Purchaser if related to an Originator or any the name 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 an Originator if related to 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.SPV Purchaser;
(j) The Seller’s SPV Purchaser maintains and will maintain separate corporate records, documents and books of accounting from those of Feed, any other Originator or any other entity, and keeps and will keep correct and complete books and records of account and minutes of the meetings and other proceedings of its members and the Board of Managers;
(k) The SPV Purchaser will maintain separate financial statements from the Originators. All financial statements of LOL, Feed, or any Affiliate thereof that are Consolidated to include the SPV Purchaser will contain appropriate footnotes or will otherwise disclose that (A) the Receivables and Related Rights have been sold (or contributed) to the SPV Purchaser pursuant to this Agreement, and (B) the SPV Purchaser is a separate entity with creditors who have received security interests in the SPV Purchaser's assets;
(l) The SPV Purchaser's assets will be maintained in a manner that facilitates their identification and segregation from those of VistraFeed, the Servicer or any other Originator or any of their respective other Affiliates.Affiliate thereof;
(km) The Seller SPV Purchaser will strictly observe corporate formalities in its dealings with VistraFeed, the Servicer other Originators or any Originator or any of their respective other AffiliatesAffiliates thereof, and ensure that funds or other assets of the Seller are SPV Purchaser will not be commingled with those of VistraFeed, the Servicer or any other Originator or any of their respective other Affiliates except as permitted by this AgreementAffiliate thereof. The Seller SPV Purchaser shall not maintain joint bank accounts or other depository accounts to which VistraFeed, the Servicer or any other Originator or any of their respective Affiliate thereof (other Affiliates than Feed in its capacity as Servicer) has independent access.;
(ln) The Seller SPV Purchaser will maintain arm’s-length arms'-length relationships with Feed, each of Vistra, the Servicer or any other Originator (and any of their other Affiliates)Affiliate thereof. Any Person that renders or otherwise furnishes services to the Seller SPV Purchaser will be compensated by the Seller SPV Purchaser at market rates for such services it renders or otherwise furnishes to the SellerSPV Purchaser. Neither the SellerSPV Purchaser, on the one handFeed nor any other Originator will guaranty, nor the Servicer or assume any Originator, on the other, will be obligations of 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 (i) in the othercase of the SPV Purchaser, Feed or any other Originator and (ii) in the case of Feed and each other Originator, the SPV Purchaser. The Seller SPV Purchaser, Feed and the Servicer others Originators will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single 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.and
(o) The Seller shall not guaranteeSPV Purchaser (i) will act solely in its own name and through its duly authorized officers or agents in the conduct of its businesses, (ii) will take no action which may mislead third parties as to the separate corporate identities and separate assets and liabilities of each Originator and the SPV Purchaser, and (iii) will have and utilize its own invoices and letterhead separate from any Originator. No Originator shall not otherwise be liable(a) hold itself out as having agreed to pay or become liable for the debts of the SPV Purchaser, (b) operate or purport to operate as an integrated, single economic unit with respect the SPV Purchaser, or (c) seek or obtain credit from or incur any obligation to any obligation of any of its Affiliates.
(p) The Seller shall be, at all times, adequately capitalized to engage in third party based upon the transactions contemplated in its limited liability company agreement.
(q) Each assets of the Seller SPV Purchaser. No Originator shall identify the SPV Purchaser as a division or department of itself or any other Originator. Without limiting the foregoing, each of the Originators and the Servicer will SPV Purchaser agrees to take such other all actions as are necessary on its part to ensure that the facts corporate separateness assumptions, statements and assumptions representations 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, Exhibit C attached hereto are and in the certificates accompanying such opinion, shall at all times remain true and correct in all material respects at all timescorrect.
Appears in 1 contract
Separate Existence. Each of the Seller and the Servicer Parent hereby acknowledges that the PurchasersPurchaser, the Purchaser Agents Program Support Providers and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from the Servicer, each Originator, Vistra and their respective other AffiliatesParent. Therefore, from and after the date hereof, each of the Seller and the Servicer Parent shall take all steps specifically required by this Agreement or by the Purchaser or Administrator to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of Vistra, the Servicer, each Originator, Parent and any other Person, and is not a division of Vistra, the Servicer, the Originators, its or their respective other Affiliates Parent 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 Parent shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited liability company purpose corporation whose primary activities are restricted in its limited liability company agreement certificate of incorporation to (i) purchasing or otherwise acquiring from any Originatorthe Originators, owning, holding, granting security interests interests, or selling interests 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, liability other than as expressly permitted by the Transaction Documents.;
(c) Not less than one independent manager (the “Independent Manager”) member of Seller's Board of Directors 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 securitiesDirector. The limited liability company agreement certificate of the incorporation of Seller shall at all times provide that (i) the Seller’s Manager (as defined in its limited liability company agreement) 's Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition or a merger or dissolution with respect to the Seller unless the Manager and the Independent Manager Director shall approve the taking of such action in writing before prior to the taking of such action; action and (ii) such provision cannot be amended without the prior written consent of the Independent Manager.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer Parent or any Originator or any of their respective other Affiliates.Affiliate thereof;
(e) Any employee, consultant or agent of the Seller will be compensated from the Seller’s 's funds for services provided to the Seller. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent Servicer as contemplated by the Transaction Documents for the Receivables Pool., which Servicer will be fully compensated for its services by payment of the Servicer's Fee and a manager, which manager will be fully compensated from Seller's funds;
(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 Parent (or any other Affiliate thereof) that which are not reflected in the Servicing FeeServicer's Fee or the fee to Parent in its role as manager for Seller. To the extent, if any, that the Seller (or any other Affiliate thereof) shares share items of expenses not reflected in the Servicing Servicer's Fee or the manager’s '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, it being understood that the Servicer may Parent shall pay all (or any portion of) the expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legalincluding, agency without limitation, legal and other fees.;
(g) The Seller’s 's operating expenses will not be paid by Vistra, the Servicer, any Originator Parent or any other Affiliate thereof.;
(h) The Seller will have its own stationery;
(i) Seller’s 's books and records will be maintained separately from those of Vistra, the Servicer or Parent and any Originator or any of their respective other Affiliates.Affiliate thereof;
(ij) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer Parent or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that (iA) such Affiliates all of Seller's assets are separate legal entities and the owned by Seller’s assets and credit are not available to satisfy the debts and obligations of such Affiliates or any other Person , and (iiB) the Seller is a separate entity with creditors who have received security interests in Seller’s assets shall be listed on the Seller’s own separate balance sheet.'s assets;
(jk) The Seller’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer Parent or any Originator or any of their respective other Affiliates.Affiliate thereof;
(kl) The Seller will strictly observe corporate formalities in its dealings with Vistra, the Servicer Parent or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer Parent or any Originator or any of their respective other Affiliates Affiliate thereof except as permitted by this AgreementAgreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer Parent or any Originator or any of their respective Affiliate thereof (other Affiliates than Parent in its capacity as Servicer) has independent access.; and
(lm) The Seller will maintain arm’s-length arms'-length relationships with each of Vistra, the Servicer or any Originator Parent (and any of their other AffiliatesAffiliate thereof). 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, Seller nor the Servicer or any Originator, on the other, Parent will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other. The Seller and the Servicer Parent will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single 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.
Appears in 1 contract
Sources: Receivables Purchase Agreement (D & K Healthcare Resources Inc)
Separate Existence. Each of the Seller and the Servicer Greetings hereby acknowledges that the Purchasers, the Purchaser Agents Agents, the Administrator and the Administrator Liquidity Providers are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Seller’s 's and AGSC's identity as a legal entity separate from the Servicer, each Originator, Vistra Greetings and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer Greetings shall take all steps specifically required by this the Agreement or reasonably required by the Administrator to continue the Seller’s 's and AGSC's identity as a separate legal entity and to make it apparent to third Persons that each of the Seller and AGSC is an entity with assets and liabilities distinct from those of Vistra, the Servicer, each Originator, Greetings and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsGreetings, 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 Greetings shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited liability company purpose corporation whose primary activities are restricted in its limited liability company agreement to certificate of incorporation to: (i) purchasing or otherwise acquiring from any Originatorthe Originators, 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 member of the Seller's Board of Directors (the “Independent Manager”"INDEPENDENT DIRECTOR") 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 ownerstockholder, officer, director, employee, affiliate, associate or supplier of Vistra, the Servicer Greetings 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 securitiesAffiliates. The limited liability company agreement certificate of incorporation of the Seller shall at all times provide that that: (i) the Seller’s Manager (as defined in its limited liability company agreement) 's Board of Directors 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 Director 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.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer Greetings or any Originator or any of their respective other Affiliates.Affiliate thereof;
(e) Any employee, consultant or agent of the Seller or AGSC will be compensated from the Seller’s 's or AGSC's (as appropriate) funds for services provided to the SellerSeller or AGSC. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, professionals and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee;
(f) The Seller will contract with the Servicer, 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 DocumentsAgreement. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer Greetings (or any other Affiliate thereof) that are not reflected in the Servicing Fee. To the extent, if any, that the Seller Seller, AGSC (or any Affiliate thereof) shares items of expenses not reflected in the Servicing Fee or the manager’s feeFee, 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, it being understood that the Servicer may Greetings shall 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 Neither the Seller’s 's nor AGSC's operating expenses will not be paid by Vistra, the Servicer, any Originator Greetings or any other Affiliate thereof.;
(h) All of the Seller's and AGSC's business correspondence and other communications shall be conducted in their respective names and on their own separate stationery;
(i) The Seller’s 's and AGSC's books and records will be maintained separately from those of Vistra, the Servicer or Greetings and any Originator or any of their respective other Affiliates.Affiliate thereof;
(ij) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer Greetings or any Originator Affiliate thereof that are consolidated to include Seller or any of their respective other Affiliates unless required in accordance with GAAP and any such consolidated financial statements shall AGSC will contain detailed notes clearly stating that that: (i) such Affiliates are separate legal entities each is a special purpose corporation and the Seller’s assets and credit are not available to satisfy the debts and obligations a Subsidiary of such Affiliates or any other Person Greetings, and (ii) the Originators have sold receivables and other related assets to AGSC (who has in turn sold receivables and related assets to Seller’s assets shall be listed on the Seller’s own separate balance sheet.) or Seller that, in turn, has sold undivided interests therein to certain financial institutions and other entities;
(jk) The Seller’s 's and AGSC's assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer Greetings or any Originator or any of their respective other Affiliates.Affiliate thereof;
(kl) The Each of the Seller and AGSC will strictly observe corporate formalities in its dealings with Vistra, the Servicer Greetings or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are and AGSC will not be commingled with those of Vistra, the Servicer Greetings or any Originator or any of their respective other Affiliates Affiliate thereof except as permitted by this Agreementthe Agreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which VistraGreetings and/or any Affiliate thereof (other than Greetings in its capacity as the Servicer and any permitted Sub-Servicer) has independent access. Neither the Seller nor AGSC is named, and has entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of Greetings or any Subsidiary or other Affiliate of Greetings. Each of the Seller and AGSC will pay to the appropriate Affiliate their respective share of the marginal increase or, in the absence of such increase, the Servicer or any Originator or any market amount of their respective other Affiliates has independent access.share of the portion of the premium payable with respect to any insurance policy that covers the Seller and/or AGSC and such Affiliate;
(lm) The Seller and AGSC will maintain arm’sarm's-length relationships with each of Vistra, the Servicer or any Originator Greetings (and any of their other AffiliatesAffiliate thereof). Any Person that renders or otherwise furnishes services to the Seller and/or AGSC will be compensated by the Seller or AGSC (as appropriate) at market rates for such services it renders or otherwise furnishes to the SellerSeller or AGSC (as appropriate). Neither the Seller, on the one hand, AGSC nor the Servicer or any Originator, on the other, Greetings 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 Seller, AGSC and the Servicer Greetings will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity.; and
(mn) None of Vistra, the Servicer or other Originator Greetings shall not pay the salaries of Seller’s 's or AGSC's employees, if any. EXHIBIT V TERMINATION EVENTS Each of the following shall be a "TERMINATION EVENT ":
(i) the Seller, Greetings, any Originator, AGSC or the Servicer shall fail to perform or observe any term, covenant or agreement under the Agreement or any other Transaction Document, (ii) the Seller or the Servicer shall fail to make when due any payment or deposit to be made by it under the Agreement and such failure shall continue unremedied for one Business Day or (iii) Greetings shall resign as Servicer, and no successor Servicer reasonably satisfactory to the Administrator and the Majority Purchasers shall have been appointed; PROVIDED that at all times when Administrator is not permitted to demand that the Servicer segregate Collections pursuant to SECTION 1.4(b), no Termination Event or Unmatured Termination Event shall arise solely from the Seller's or Servicer's (whether as Greetings or as Servicer) failure to comply with the first sentence of SECTIONS 1(j) or 2(h) of Exhibit IV to this Agreement (respectively) with respect to Collections received as wire transfers, unless and until (A) during the period from the Closing Date until earlier of 120 days following the Closing Date or Kinko's makes payments on Receivables owing from it directly to a Lock-Box Account (the "INTERIM PERIOD '), the aggregate amount of such Collections held by the Servicer shall exceed $300,000, (B) during the Interim Period, the Servicer shall fail to transfer Collections received by it during any calendar week no later than the second Business Day of the next following calendar week, or (C) at all times after the Interim Period, the Servicer shall fail to transfer Collections received by it at any time the aggregate amount of such Collections during any calendar month and not previously transferred shall exceed $100,000 for such calendar month; PROVIDED, FURTHER, that with respect to the failure described in clause (a)(i) hereinabove, if such failure may be cured without any potential or actual detriment to any Purchaser, then the Seller, Greetings, any Originator, AGSC or the Servicer, as applicable, shall have ten days from the earlier of (A) such Person's knowledge of such failure and (B) notice to such Person of such failure to so cure any such failure before a Termination Event shall occur, so long as such Person is diligently attempting to effect such cure.
(nb) No Greetings (or any Affiliate thereof) shall fail to transfer to any successor Servicer when required any rights pursuant to the Agreement that Greetings (or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the Seller, Greetings, AGSC or any Originator (or any of their respective officers) under or in connection with the Agreement or any other Transaction Document, or any information or report delivered by the Seller, Greetings, AGSC or any Originator or the Servicer pursuant to the Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered; PROVIDED, HOWEVER, that if the representation and warranty contained in SECTIONS 1(g), 1(n) or 1(v) of EXHIBIT III to this Agreement shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered, such breach shall not constitute a Termination Event if the Seller shall advance funds tohave complied with its obligations with respect to such Receivable set forth in SECTION 1.4(e); PROVIDED, FURTHER, that if such breach may be cured without any potential or guaranty debts ofactual detriment to any Purchaser, then the Seller, except Greetings, AGSC or any Originator, as otherwise provided herein or in applicable, shall have ten days from the other Transaction Documents; providedearlier of (A) such Person's knowledge of such breach and (B) notice to such Person of such breach to so cure any such breach before a Termination Event shall occur, that an Affiliate of the Seller may provide funds so long as such Person is diligently attempting to the Seller in connection with its capitalizationeffect such cure.
(od) The the Seller or the Servicer shall fail to deliver the Information Package pursuant to the Agreement, and such failure shall remain unremedied for two Business Days;
(e) the Agreement or any purchase or reinvestment pursuant to the Agreement shall for any reason: (i) cease to create, or the Purchased Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage ownership or security interest to the extent of the Purchased Interest in each Pool Receivable, the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, or (ii) cease to create with respect to the Pool Assets, or the interest of the Administrator (for the benefit of the Purchasers) with respect to such Pool Assets shall cease to be, a valid and enforceable first priority perfected security interest, free and clear of any Adverse Claim;
(f) the Seller, Greetings, AGSC or any Originator shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller, Greetings, AGSC or any Originator seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Seller, Greetings, AGSC or any Originator shall take any organizational action to authorize any of the actions set forth above in this paragraph;
(g) (i) (A) the Everyday Default Ratio shall exceed 5.0%, (B) the Disputed Default Ratio shall exceed 3.0%, (C) the Seasonal Default Ratio shall exceed 3.0%, (D) the Delinquency Ratio shall exceed 48% or (ii) the average for three consecutive calendar months of (A) the Everyday Default Ratio shall exceed 4.0%, (B) the Disputed Default Ratio shall exceed 2.5%, (C) the Seasonal Default Ratio shall exceed 2.5%, (D) the Delinquency Ratio shall exceed 44%, or (E) the Dilution Ratio shall exceed 7%; or (iii) Days Sales Outstanding shall exceed 100.
(h) a Change in Control shall occur with respect to Seller, any Originator, AGSC or Greetings;
(i) at any time (i) the sum of (A) the Aggregate Investment plus (B) the Total Reserves, exceeds (ii) the sum of (A) the Net Receivables Pool Balance at such time plus (B) the Purchasers' Share of the amount of Collections then on deposit in the Lock-Box Accounts (other than amounts set aside therein representing Discount and Fees), and such circumstance shall not guaranteehave been cured within two Business Days;
(i) Greetings or any of its Subsidiaries shall fail to pay any principal of or premium or interest on any of its Debt that is outstanding in a principal amount of at least $10,000,000 in the aggregate when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement, mortgage, indenture or instrument relating to such Debt (and shall have not otherwise been waived); or (ii) any other event shall occur or condition shall exist under any agreement, mortgage, indenture or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement, mortgage, indenture or instrument (and shall have not been waived), if, in either case: (a) the effect of such non-payment, event or condition is to give the applicable debtholders the right (whether acted upon or not) to accelerate the maturity of such Debt, or (b) any such Debt shall be liabledeclared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Debt shall be required to be made, in each case before the stated maturity thereof;
(k) either: (i) a contribution failure shall occur with respect to any obligation Benefit Plan sufficient to give rise to a lien under Section 302(f) of ERISA, (ii) the Internal Revenue Service shall file a notice of lien asserting a claim or claims pursuant to the Internal Revenue Code with regard to any of the assets of Seller, any Originator, AGSC, Greetings or any ERISA Affiliate and such lien shall have been filed and not released within 10 days, or (iii) the Pension Benefit Guaranty Corporation shall, or shall indicate its Affiliates.
(p) The Seller shall be, at all times, adequately capitalized intention in writing 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 issuesany Originator, and in the certificates accompanying such opinionAGSC, remain true and correct in all material respects at all times.Greetings or any ERISA Aff
Appears in 1 contract
Sources: Receivables Purchase Agreement (American Greetings Corp)
Separate Existence. Each of the Seller and the Servicer Peabody 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 's identity as a legal entity separate from the Servicer, each Originator, Vistra Peabody and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer Peabody shall take all steps specifically required by this the Agreement or reasonably required by the Administrator to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of Vistra, the Servicer, each Originator, Peabody and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsPeabody, 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 Peabody shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited purpose limited liability company whose primary activities are restricted in its limited liability company agreement to certificate of formation to: (i) purchasing or otherwise acquiring from any Originatorthe Originators or Peabody (or their Affiliates), owning, holding, granting security interests or selling interests in Pool Assets; Assets (or other receivables originated by the Originators or their Affiliates, and certain related assets), (ii) entering into agreements for the selling and servicing of the Receivables Pool; Pool (or other receivables pools originated by the Originators or their Affiliates), and (iii) conducting such other activities as it deems are necessary or appropriate to carry out its primary such activities.;
(b) The Seller shall not engage in any business or activity, or activity except as set forth in this Agreement nor incur any indebtedness or liability, other than as expressly permitted by the Transaction Documents.;
(c) Not less than one independent manager of the Seller's Directors (the “Independent ManagerDirector”) shall be an individual a natural person who (iA) is not, and has not at any time during for the five-year period prior to his or her appointment as Independent Manager Director has not been, a direct, indirect and during the continuation of his or beneficial owner, officerher service as Independent Director is not: (i) an employee, director, employeestockholder, affiliatemember, associate manager, partner or supplier officer of Vistrathe Seller, the Servicer Peabody or any of its or their respective Affiliates (other than his or her service as an independent manager or in a similar capacity Independent Director of any such Personthe Seller); (ii) a customer or supplier of the Seller, Peabody or any of their respective Affiliates (other than his or her service as an Independent Director of Seller); or (iii) any member of the immediate family of a person described in clause (i) or (ii) above, and (B) has, (i) prior experience as an Independent Director for a corporation or 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 (ii) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. The limited liability company agreement Such Independent Director of the Seller shall at all times have been appointed as such in strict compliance with the Seller's LLC Agreement. The Seller's LLC Agreement shall provide that (i) the Seller’s Manager (as defined in its limited liability company agreement) 's Board of Directors shall not approve, or take any other action to cause the filing of, or join in any filing of, a voluntary bankruptcy petition or insolvency petition, dissolution, liquidation, consolidation, merger, sale of all or substantially all of its assets, assignment for the benefit of creditors, admit in writing its inability to pay its debts generally as they become due, or to engage in any other business or activity with respect to the Seller unless (x) there is at least one Independent Director then serving as a director of the Manager Seller and appointed pursuant to and in strict compliance with the Seller's LLC Agreement, and (y) all such Independent Manager Directors of the Seller shall approve have approved the taking of such action in writing before prior to the taking of such action; action and (ii) such provision cannot be amended without the prior written consent of the Independent Manager.Director and the Administrator;
(d) Upon the occurrence of any event that causes the Member to cease to be a member of the Seller (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Seller and the admission of the transferee pursuant to Sections 21 and 23 of the LLC Agreement, or (ii) the resignation of the Member and the admission of an additional member of the Seller pursuant to Sections 22 and 23 of the LLC Agreement), each person acting as an Independent Director pursuant to Section 10 of the LLC Agreement shall, without any action of any Person and simultaneously with the Member ceasing to be a member of the Seller, automatically be admitted to the Seller as a Special Member and shall continue the Seller without dissolution. No Special Member may resign from the Seller or transfer its rights as a Special Member unless (i) a successor Special Member has been admitted to the Seller as Special Member by executing a counterpart to the LLC Agreement, and (ii) such successor has also accepted its appointment as Independent Director pursuant to Section 10 of the LLC Agreement; provided, however, the Special Members shall automatically cease to be members of the Seller upon the admission to the Seller of a substitute Member.
(e) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer Peabody or any Originator or any of their respective other Affiliates.Affiliate thereof;
(ef) Any employee, consultant or agent of the Seller will be compensated from the Seller’s 's funds for services provided to the Seller. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller's funds;
(fg) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer Peabody (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 '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, it being understood that the Servicer may Peabody shall 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 's operating expenses will be paid by the Seller and not by Peabody or any other Affiliate thereof;
(i) All of the Seller's business correspondence and other communications shall be conducted in the Seller's own name and on its own separate stationery;
(j) The Seller's books and records will be maintained separately from those of Vistra, the Servicer or Peabody and any Originator or other Affiliate thereof and any of their respective other Affiliates.Person;
(ik) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer Peabody or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that that: (i) such Affiliates are separate legal entities and the Seller’s assets and credit are not available to satisfy the debts and obligations a special purpose limited liability company exists as a Subsidiary of such Affiliates or any other Person Peabody, and (ii) the Seller’s Originators have sold receivables and other related assets shall be listed on to the Seller’s own separate balance sheet.Contributor, which has contributed such receivables and other related assets to such special purpose Subsidiary that, in turn, has sold such receivables and other related assets to certain financial institutions and other entities;
(jl) The Seller’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer Peabody or any Originator or Affiliate thereof and any of their respective other Affiliates.Person;
(km) The Seller will strictly observe corporate organizational formalities in its dealings with Vistra, the Servicer Peabody or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer Peabody or any Originator or any of their respective other Affiliates Affiliate thereof except as permitted by this Agreementthe Agreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer Peabody or any Originator Affiliate thereof or any of their respective other Affiliates Person has independent access., and the Seller shall use separate invoices and checks from any other Person. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of Peabody or any Subsidiary or other Affiliate of Peabody (other than the Seller). The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(ln) The Seller will maintain arm’sarm's-length relationships with each of Vistra, the Servicer or any Originator Peabody (and any of their other AffiliatesAffiliate thereof). 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, Seller nor the Servicer or any Originator, on the other, Peabody 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 Peabody will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single 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.;
Appears in 1 contract
Sources: Receivables Purchase Agreement (Peabody Energy Corp)
Separate Existence. Each of the Seller and the Servicer hereby acknowledges that the Purchasers, the Purchaser Agents Purchasers 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 ACI and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer ACI shall take all steps specifically required by this Agreement or reasonably required by the Administrator or any Purchaser 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, ACI and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsACI, 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 ACI shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited liability company whose primary activities are restricted in its limited liability company agreement to LLC Agreement to: (i) purchasing or otherwise acquiring from any Originatorthe Transferor, 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 activityactivity except as set forth in this Agreement nor, or incur any indebtedness or liability, liability other than as expressly permitted by the Transaction Documents.;
(c) Not less than one independent manager member of the Seller’s Board of Directors (the “Independent ManagerDirector”) 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 ownerstockholder, officer, director, employee, affiliate, associate or supplier of VistraACI, Arch Sales, any Originator, the Servicer Transferor 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 securitiesrespective Affiliates. The limited liability company agreement LLC Agreement of the Seller shall at all times provide that that: (i) the Seller’s Manager (as defined in its limited liability company agreement) Board of Directors 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 Director 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.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, VistraACI, any Originator, the Servicer or any Originator Transferor or any of their respective other Affiliates.;
(e) The Seller shall conduct its affairs strictly in accordance with its organizational documents and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and board of directors’ meetings appropriate to authorize all limited liability company action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(f) Any employee, consultant or agent of the Seller will be compensated from the Seller’s funds for services provided to the Seller, and to the extent that Seller shares the same officers or other employees as ACI (or any other Affiliate thereof), the salaries and expenses relating 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 such common officers and employees. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(fg) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer ACI (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, it being understood that the Servicer may ACI shall 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.;
(gh) The Seller’s operating expenses will not be paid by VistraACI, the Servicer, Transferor or any Originator or any other Affiliate thereof.;
(hi) The Seller will have its own separate stationery;
(j) The Seller’s books and records will be maintained separately from those of VistraACI and any other Affiliate thereof and in a manner such that it will not be difficult or costly to segregate, ascertain or otherwise identify the Servicer or any Originator or any assets and liabilities of their respective other Affiliates.Seller;
(ik) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer ACI or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall contain detailed notes clearly stating to include the Seller will disclose that (i) the Seller’s sole business consists of the purchase or acceptance through capital contributions of the Receivables and Related Rights from the Transferor and the subsequent retransfer of or granting of a security interest in such Affiliates are Receivables and Related Rights to certain purchasers party to this Agreement, (ii) the Seller is a separate legal entities and entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the Seller’s assets prior to any assets or value in the Seller becoming available to the Seller’s equity holders and credit (iii) the assets of the Seller are not available to satisfy the debts and obligations pay creditors of such Affiliates ACI or any other Person and (ii) Affiliates of ACI or the Seller’s assets shall be listed on Originators or the Seller’s own separate balance sheet.Transferor;
(jl) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer ACI or any Originator or any of their respective other Affiliates.Affiliates thereof;
(km) The Seller will strictly observe corporate formalities in its dealings with Vistra, the Servicer ACI or any Originator or any of their respective other AffiliatesAffiliates thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer ACI or any Originator or any of their respective other Affiliates thereof except as permitted by this AgreementAgreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer ACI or any Originator or any of their respective Affiliate thereof (other Affiliates than ACI in its capacity as the Servicer) has independent access.. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of ACI or any Subsidiaries or other Affiliates thereof. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(ln) The Seller will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator ACI (and any of their other AffiliatesAffiliates thereof). 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, Seller on the one hand, nor the Servicer or any OriginatorACI, on the otherother hand, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other. The Seller and the Servicer ACI will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single 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 have a separate area from ACI for its business (which may be located at the same address as such entities) and to the extent that any other such entity 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; and
(p) To the extent not guaranteealready covered in paragraphs (a) through (o) above, Seller shall comply and/or act in accordance with the provisions of Section 6.4 of the Sale and Contribution Agreement. Each of the following shall be a “Termination Event”:
(i) the Seller, ACI, any Originator, the Transferor or the Servicer shall fail to perform or observe any term, covenant or agreement under the Agreement or any other Transaction Document, and, except as otherwise provided herein, such failure, solely to the extent capable of cure, shall continue for 30 days, (ii) the Seller or the Servicer shall fail to make when due any payment or deposit to be made by it under the Agreement or any other Transaction Document and such failure shall continue unremedied for one Business Day, or (iii) Arch Sales shall resign as Servicer, and no successor Servicer reasonably satisfactory to the Administrator shall have been appointed;
(b) Arch Sales (or any Affiliate thereof) shall fail to transfer to any successor Servicer when required any rights pursuant to the Agreement that Arch Sales (or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the Seller, ACI, any Originator, the Transferor or the Servicer (or any of their respective officers) under or in connection with the Agreement or any other Transaction Document, or any information or report delivered by the Seller, ACI, any Originator, the Transferor or the Servicer pursuant to the Agreement or any other Transaction Document, shall prove to have been incorrect or untrue when made or deemed made or delivered, and shall remain incorrect or untrue for 10 Business Days;
(d) the Seller or the Servicer shall fail to deliver the Information Package pursuant to the Agreement, and such failure shall remain unremedied for two Business Days;
(e) the Agreement or any purchase or reinvestment pursuant to the Agreement shall for any reason: (i) cease to create, or the Purchased Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage ownership or security interest to the extent of the Purchased Interest in each Pool Receivable, the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, or (ii) cease to create with respect to the Pool Assets, or the interest of the Administrator with respect to such Pool Assets shall cease to be, a valid and enforceable first priority perfected security interest, free and clear of any Adverse Claim;
(f) the Seller, ACI, the Transferor or any Originator shall generally not otherwise pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be liableinstituted by or against the Seller, ACI, the Transferor or any Originator seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Seller, ACI, the Transferor or any Originator shall take any corporate or organizational action to authorize any of the actions set forth above in this paragraph;
(g) (i) the (A) Default Ratio shall exceed 3% or (B) the Delinquency Ratio shall exceed 6%, or (ii) the average for three consecutive calendar months of: (A) the Default Ratio shall exceed 2%, (B) the Delinquency Ratio shall exceed 4% or (C) the Dilution Ratio shall exceed 3%, or (iii) Days’ Sales Outstanding shall exceed 48 days;
(h) a Change in Control shall occur;
(i) at any time (i) the sum of (A) the Capital, plus the LC Participation Amount, plus (B) the Total Reserves exceeds (ii) the sum of (A) the Net Receivables Pool Balance at such time, plus (B) the Purchasers’ Share of the amount of Collections then on deposit in the Lock-Box Accounts (other than amounts set aside therein representing Discount and fees), plus (C) the sum of all amounts then on deposit in the LC Collateral Account, and such circumstance shall not have been cured within two Business Days;
(j) ACI or any of its Subsidiaries (other than any Excluded Subsidiary) shall fail to pay any principal of or premium or interest on any of its Debt that is outstanding in a principal amount of at least $40,000,000 in the aggregate when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement, mortgage, indenture or instrument relating to such Debt (whether or not such failure shall have been waived under the related agreement), (ii) any other event shall occur or condition shall exist under any agreement, mortgage, indenture or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement, mortgage, indenture or instrument (whether or not such failure shall have been waived under the related agreement), if the effect of such event or condition is to give the applicable debtholders the right (whether acted upon or not) to accelerate the maturity of such Debt, or (iii) any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Debt shall be required to be made, in each case before the stated maturity thereof;
(k) ACI shall fail to perform any of its obligations under the Performance Guaranty;
(i) a contribution failure shall occur with respect to any obligation Benefit Plan sufficient to give rise to a lien on any of the assets of Seller, any Originator, the Transferor, ACI or any ERISA Affiliate under Section 302(f) of ERISA and such failure is not cured and any related lien released within 10 days or (ii) either the Internal Revenue Service or the Pension Benefit Guaranty Corporation shall have filed one or more notices of lien asserting a claim or claims pursuant to the Internal Revenue Code, or ERISA, as applicable, against the assets of (a) the Seller or (b) the Servicer, the Transferor, any Originator, ACI or any ERISA Affiliate (other than the Seller) in an amount in excess of $250,000 and such lien is not released within 10 days; or
(m) Any Letter of Credit is drawn upon and, unless as a result of the LC Bank’s failure to provide the notice required by Section 1.14(b), not fully reimbursed pursuant to Section 1.14 (including, if applicable, with the proceeds of any funding by the Issuer) within two Business Days from the date of its Affiliatessuch draw.
(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.
Appears in 1 contract
Separate Existence. Each of the Seller and the Servicer hereby acknowledges that the Purchasers, the Purchaser Agents and the Administrator are Buyer is 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 ServicerPerformance Guarantor, each Originator, Vistra the Originators 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 or reasonably required by the Buyer 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 Vistrathe Performance Guarantor, any Originator, the Servicer, each Originator, Servicer and any other Person, and is not a division of Vistrathe Performance Guarantor, any Originator, the Servicer, the Originators, its or their respective other Affiliates Servicer 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 Datethat:
(a) The Seller will be a limited liability company whose primary activities are restricted in its limited liability company operating agreement to to: (i) purchasing or otherwise acquiring from any Originatorthe Originators or the Performance Guarantor, owning, holding, servicing, granting security interests or selling interests in Pool Assets; Receivables and Related Security, (ii) entering into agreements for the selling and servicing of Receivables and Related Security or for borrowing from banks, financial institutions or similar entities, (iii) purchasing, holding and selling common stock or similar equity interests (“Equity Investments”) and exercising all voting rights and other incidents of ownership with respect to the Receivables Pool; Equity Investments, (iv) using proceeds derived from sale or ownership of Receivables, Related Security and Equity Investments as determined by the board of directors of the Seller and permitted by the Transaction Documents and (iiiv) 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 liabilityliability (including, without limitation, any assumption or guaranty of any obligation of the Performance Guarantor, any Originator, the Servicer or any Affiliate thereof), other than as expressly permitted by the Transaction Documents.;
(c) Not less than one independent manager member of the Seller’s Board of Directors (the “Independent ManagerDirector”) shall be an individual a natural person (A) who (i) is not, not at the time of initial appointment and has not been at any time during the five-year period prior to his or her appointment as Independent Manager beenfive (5) years preceding such appointment: (1) an equityholder, a direct, indirect or beneficial ownerdirector (other than an independent director), officer, director, employee, affiliatemember (other than a special member or similar capacity), associate manager (other than an independent manager), attorney or supplier partner of Vistrathe Performance Guarantor, the Seller, Servicer or any of their Affiliates; (2) a customer of, supplier to or other person who derives more than 1% of its purchases or revenues from its activities with the Performance Guarantor, Seller, Servicer or any of their Affiliates Affiliates; (3) a person or other than his entity controlling, controlled by or her service under common control with any such equity holder, partner, member, manager, customer, supplier or other person; or (4) a member of the immediate family of any such equity holder, director, officer, employee, member, manager, partner, customer, supplier or other person and (B) who has (1) prior experience as an independent director for a corporation or an independent director or independent manager of a limited liability company whose charter documents required the unanimous consent of all independent directors or in independent managers thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a similar capacity of petition seeking relief under any such Person); applicable federal or state law relating to bankruptcy and (ii2) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. Under this clause (c), 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, by contract or otherwise. The limited liability company operating agreement of the Seller shall at all times provide that that: (iA) the Seller’s Manager (as defined in its limited liability company agreement) Board of Directors 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 Director shall approve the taking of such action in writing before the taking of such action; , and (iiB) such provision cannot be amended without the prior written consent of the Independent Manager.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistrathe Performance Guarantor, any Originator, the Servicer or any Originator or any of their respective other Affiliates.;
(e) The Seller shall conduct its affairs in accordance with its organizational documents and observe all necessary, appropriate and customary limited liability company formalities, including, but not limited to, holding all regular and special members’ and board of directors’ meetings appropriate to authorize all limited liability company action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(f) Any employee, consultant or agent of the Seller will be compensated from the Seller’s funds for services provided to the Seller, and to the extent that Seller shares the same officers or other employees as the Performance Guarantor, the Servicer or any Originator (or any other Affiliate thereof), the salaries and expenses relating 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 such common officers and employees. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool.and Related Security and a manager, which manager will be fully compensated from the Seller’s funds;
(fg) The Seller will contract with the Servicer, Servicer to perform for the Seller all operations required on a daily basis to service the Receivables Pooland Related Security. 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 Performance Guarantor, the Servicer or any Originator (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; providedit being understood that CB, that the Servicer may in its capacity as Servicer, shall 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.;
(gh) The Seller’s operating expenses will not be paid by Vistrathe Performance Guarantor, the Servicer, Servicer or any Originator or any other Affiliate thereof.;
(hi) The Seller will have its own separate stationery;
(j) The Seller’s books and records will be maintained separately from those of Vistrathe Performance Guarantor, the Servicer, each Originator and any other Affiliate thereof and in a manner such that it will not be difficult or costly to segregate, ascertain or otherwise identify the assets and liabilities of Seller;
(k) All financial statements of the Performance Guarantor, the Servicer or any Originator or any of their respective other Affiliates.
(i) The Seller’s assets shall not be included in the Affiliate thereof that are 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 to include Seller will disclose that (i) such Affiliates are the Seller is a separate legal entities and entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the Seller’s assets and credit are not prior to any assets or value in the Seller becoming available to satisfy the debts and obligations of such Affiliates or any other Person Seller’s equity holders and (ii) the Seller’s assets shall be listed on of the Seller’s own separate balance sheet.Seller are not available to pay creditors of the Performance Guarantor, the Servicer or the Originators or any other Affiliates of the Performance Guarantor, the Servicer or the Originators;
(jl) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of Vistrathe Performance Guarantor, the Servicer Servicer, the Originators or any Originator or any of their respective other Affiliates.Affiliates thereof;
(km) The Seller will strictly observe corporate limited liability company formalities in its dealings with Vistrathe Performance Guarantor, the Servicer Servicer, the Originators or any Originator or any of their respective other AffiliatesAffiliates thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistrathe Performance Guarantor, the Servicer Servicer, the Originators or any Originator or any of their respective other Affiliates thereof except as permitted by this AgreementAgreement in connection with servicing the Receivables and Related Security. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer Performance Guarantor or any Originator or any of their respective Affiliate thereof (other Affiliates than the Performance Guarantor in its capacity as the Servicer) has independent access.. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of the Performance Guarantor, the Originators or any Subsidiaries or other Affiliates thereof. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(ln) The Seller will maintain arm’s-length relationships with each of Vistrathe Performance Guarantor, the Servicer or any Originator Servicer, the Originators (and any of their other AffiliatesAffiliates thereof). 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, Seller on the one hand, nor the Performance Guarantor, the Servicer or any Originator, on the otherother hand, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other. The Seller Seller, the Performance Guarantor, the Servicer and the Servicer Originators will immediately promptly correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single 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.and
(o) The Seller shall not guaranteehave a separate area from the Performance Guarantor, the Servicer and each Originator for its business (which may be located at the same address as such entities) and to the extent that any other such entity has offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall not otherwise be liable, with respect to any obligation bear its fair share of any of its Affiliatessuch expenses.
(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.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Cincinnati Bell Inc)
Separate Existence. Each of the Seller and the Servicer WESCO hereby acknowledges that the Purchasers, the Purchaser Agents Issuer and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from the Servicer, each Originator, Vistra WESCO and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer WESCO shall take all steps specifically required by this the Agreement or reasonably required by the Administrator to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of Vistra, the Servicer, each Originator, WESCO and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsWESCO, 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 WESCO shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited liability company purpose corporation whose primary activities are restricted in its limited liability company agreement to certificate of incorporation to: (i) purchasing or otherwise acquiring from any Originatorthe Originators, 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 member of the Seller's Board of Directors (the “"Independent Manager”Director") 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 ownerstockholder, officer, director, employee, affiliate, associate or supplier of Vistra, the Servicer WESCO 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 securitiesAffiliates. The limited liability company agreement certificate of incorporation of the Seller shall at all times provide that that: (i) the Seller’s Manager (as defined in its limited liability company agreement) 's Board of Directors 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 Director 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.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer WESCO or any Originator or any of their respective other Affiliates.Affiliate thereof;
(e) Any employee, consultant or agent of the Seller will be compensated from the Seller’s 's funds for services provided to the Seller. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller's funds;
(f) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer WESCO (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 '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, it being understood that the Servicer may WESCO shall 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 's operating expenses will not be paid by Vistra, the Servicer, any Originator WESCO or any other Affiliate thereof.;
(h) All of the Seller's business correspondence and other communications shall be conducted in the Seller's own name and on its own separate stationery;
(i) The Seller’s 's books and records will be maintained separately from those of Vistra, the Servicer or WESCO and any Originator or any of their respective other Affiliates.Affiliate thereof;
(ij) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer WESCO or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that that: (i) such Affiliates are separate legal entities and the Seller’s assets and credit are not available to satisfy the debts and obligations a special purpose corporation exists as a Subsidiary of such Affiliates or any other Person WESCO, and (ii) the Seller’s Originators has sold receivables and other related assets shall be listed on the Seller’s own separate balance sheet.to such special purpose Subsidiary that, in turn, has sold undivided interests therein to certain financial institutions and other entities;
(jk) The Seller’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer WESCO or any Originator or any of their respective other Affiliates.Affiliate thereof;
(kl) The Seller will strictly observe corporate formalities in its dealings with Vistra, the Servicer WESCO or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer WESCO or any Originator or any of their respective other Affiliates Affiliate thereof except as permitted by this Agreementthe Agreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer WESCO or any Originator or any of their respective Affiliate thereof (other Affiliates than WESCO in its capacity as the Servicer) has independent access.. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of WESCO or any Subsidiary or other Affiliate of WESCO. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate; and
(lm) The Seller will maintain arm’sarm's-length relationships with each of Vistra, the Servicer or any Originator WESCO (and any of their other AffiliatesAffiliate thereof). 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, Seller nor the Servicer or any Originator, on the other, WESCO 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 WESCO will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity.
(mn) None of Vistra, the Servicer or other Originator WESCO shall not pay the salaries of Seller’s 's employees, if any.. EXHIBIT V TERMINATION EVENTS Each of the following shall be a "Termination Event":
(ni) No Affiliate of the Seller shall advance funds to, or guaranty debts of, the Seller, WESCO, any Originator or the Servicer shall fail to perform or observe any term, covenant or agreement under the Agreement or any other Transaction Document and, except as otherwise provided herein herein, such failure shall continue for 10 days after knowledge or notice thereof, (ii) the Seller or the Servicer shall fail to make when due any payment or deposit to be made by it under the Agreement and such failure shall continue unremedied for [three ] Business Days or (iii) WESCO shall resign as Servicer, and no successor Servicer reasonably satisfactory to the Administrator shall have been appointed;
(b) WESCO (or any Affiliate thereof) shall fail to transfer to any successor Servicer when required any rights pursuant to the Agreement that WESCO (or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the Seller, WESCO or any Originator (or any of their respective officers) under or in connection with the Agreement or any other Transaction Documents; providedDocument, that an Affiliate of or any information or report delivered by the Seller may provide funds Seller, WESCO or any Originator or the Servicer pursuant to the Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered, and shall remain incorrect or untrue for 10 days after notice to the Seller or the Servicer of such inaccuracy;
(d) the Seller or the Servicer shall fail to deliver the Information Package pursuant to the Agreement, and such failure shall remain unremedied for two days;
(e) the Agreement or any purchase or reinvestment pursuant to the Agreement shall for any reason: (i) cease to create, or the Purchased Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage ownership or security interest to the extent of the Purchased Interest in connection each Pool Receivable, the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, or (ii) cease to create with respect to the Pool Assets, or the interest of the Issuer with respect to such Pool Assets shall cease to be, a valid and enforceable first priority perfected security interest, free and clear of any Adverse Claim,
(f) the Seller, WESCO or any Originator shall generally not pay its capitalizationdebts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller, WESCO or any Originator seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Seller, WESCO or any Originator shall take any corporate action to authorize any of the actions set forth above in this paragraph;
(g) the (A) Default Ratio shall exceed 10%; (B) the Delinquency Ratio shall exceed 25%, or (C) the Dilution Ratio shall exceed 10%.
(oh) The Seller a Change in Control shall occur,
(i) at any time (i) the sum of (A) the Capital plus (B) the Total Reserves, exceeds (ii) the sum of (A) the Net Receivables Pool Balance at such time plus (B) the Issuer's Share of the amount of Collections then on deposit in the Lock-Box Accounts (other than amounts set aside therein representing Discount and fees), and such circumstance shall not guaranteehave been cured within two Business Days,
(i) WESCO or any of its Subsidiaries shall fail to pay any principal of or premium or interest on any of its Debt that is outstanding in a principal amount of at least $20,000,000 in the aggregate when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement, mortgage, indenture or instrument relating to such Debt (and shall have not otherwise been waived); or (ii) any other event shall occur or condition shall exist under any agreement, mortgage, indenture or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement, mortgage, indenture or instrument (and shall have not been waived), if, in either case: (a) the effect of such non-payment, event or condition is to give the applicable debtholders the right (whether acted upon or not) to accelerate the maturity of such Debt, or (b) any such Debt shall be liabledeclared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Debt shall be required to be made, in each case before the stated maturity thereof;
(k) either: (i) a contribution failure shall occur with respect to any obligation Benefit Plan sufficient to give rise to a lien under Section 302(f) of ERISA, (ii) the Internal Revenue Service shall file a notice of lien asserting a claim or claims of $250,000 or more in the aggregate pursuant to the Internal Revenue Code with regard to 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.the
Appears in 1 contract
Sources: Receivables Purchase Agreement (Wesco International Inc)
Separate Existence. Each From the date of the Seller and the Servicer hereby acknowledges that the Purchasersits formation, 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 Transferor has at all times:
(i) maintained its own deposit account or accounts, 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 Vistraany Affiliate, with commercial banking institutions and ensured that the funds of the Transferor were not be diverted to any other Person or for other than limited liability company uses of the Transferor, nor were such funds commingled with the funds of the Originator or any subsidiary or Affiliate of the Originator except to the extent permitted by the Transactions Documents;
(ii) to the extent that it shared the same officers or other employees as any of its members or Affiliates, the Servicer, each Originatorsalaries of and the expenses related to providing benefits to such officers and other employees were fairly allocated among such entities, and each such entity bore its fair share of the salary and benefit costs associated with all such common officers and employees;
(iii) to the extent that it jointly contracted 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 were allocated fairly among such entities, and each such entity bore its fair share of such costs. To the extent that the Transferor contracted or did business with vendors or service providers where the goods and services provided were partially for the benefit of any other Person, the costs incurred in so doing were fairly allocated to or among such entities for whose benefit the goods or services are provided, and is not a division each such entity bore its fair share of Vistrasuch costs;
(iv) entered into all material transactions between the Transferor and any of its Affiliates only on an arm’s length basis, it being understood and agreed that the Servicer, transactions contemplated in the Originators, its or their respective other Affiliates or any other Person. Without limiting Transaction Documents meet the generality requirements of this clause (iv);
(v) either maintained office space separate from the office space of the foregoing Originator and its Affiliates or, to the extent that the Transferor and any of its members or Affiliates had offices in addition to the same location, there was a fair and consistent with the other covenants set forth hereinappropriate allocation of overhead costs among them, and each such entity bore its fair share 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:expenses;
(avi) The Seller will be a issued separate financial statements prepared not less frequently than annually and prepared in accordance with GAAP;
(vii) conducted its affairs strictly in accordance with its Limited Liability Company Agreement and observed all necessary, appropriate and customary limited liability company whose primary activities are restricted in its formalities, including, but not limited to, holding all regular and special directors’ meetings appropriate to authorize all limited liability company agreement action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(iviii) purchasing or otherwise acquiring from neither assumed nor guaranteed 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 liabilities 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.;
(gix) The Seller’s operating expenses will not be paid by Vistra, the Servicer, any Originator or any other Affiliate thereof.maintained at least one Independent Director; and
(hx) 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 totook, or guaranty debts ofrefrained from taking, as the Seller, except as otherwise provided herein or in the other Transaction Documents; provided, that an Affiliate of the Seller case 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 that were necessary on its part to ensure that be taken or not to be taken in order to operate its business and perform its obligations under the facts Transaction Documents in a manner which complied with the representations in this Section 3.1(x) and was otherwise consistent with the factual assumptions set forth described in the legal opinion issued by Sidley Austin LLP, as counsel for delivered to the Seller, in connection with this Agreement relating to Funding Agents addressing issues of substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all timesconsolidation.
Appears in 1 contract
Separate Existence. Each The Seller shall at all times: ------------------
(i) maintain its deposit account or accounts separate from those of the Purchaser and ensure that its funds will not be diverted to the Purchaser nor will such funds be commingled with the funds of the Purchaser (other than funds deposited to a Lock-Box Account, which funds may be commingled for a period not exceeding two (2) Business Days);
(ii) to the extent that it shares any officers or other employees with the Purchaser, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among it and the Purchaser, and the Seller and the Servicer hereby acknowledges Purchaser shall bear their respective fair share of the salary and benefit costs associated with all such common officers and employees;
(iii) to the extent that it jointly contracts with the PurchasersPurchaser to do business with vendors or service providers or to share overhead expenses, the Purchaser Agents costs incurred in so doing shall be allocated fairly between it and the Administrator are entering into the transactions contemplated by this Agreement Purchaser, and it and the other Transaction Documents Purchaser shall bear their fair shares of such costs. To the extent that it contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of the Purchaser, the costs incurred in reliance upon so doing shall be fairly allocated between it and the Seller’s identity as a legal entity separate from Purchaser in proportion to the Servicerbenefit of the goods or services each is provided, each Originator, Vistra and their respective other Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer Purchaser 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 bear their respective other Affiliates or any other Person. Without limiting the generality fair shares of the foregoing and in addition to and consistent such costs;
(iv) enter into all material transactions with the other covenants set forth hereinPurchaser, each of the Seller whether currently existing or hereafter entered into, only on an arm's length basis, it being understood 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 agreed 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.the Transaction Documents meet the requirements of this clause (iv);
(qv) Each maintain office space that is physically segregated from the office space of the Seller Purchaser (but which may be located at the same address as the Purchaser) and, to the extent that it and the Servicer will take such other actions as are necessary on its part to ensure that the facts and assumptions set forth Purchaser have offices in the opinion issued by Sidley Austin LLPsame location, as counsel for the Seller, in connection with this Agreement relating to substantive consolidation issuesthere shall be a fair and appropriate allocation of overhead costs between them, and in the certificates accompanying each shall bear its fair share of such opinion, remain true and correct in all material respects at all times.expenses; and
Appears in 1 contract
Separate Existence. Each The Company will:
(i) maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the Seller state of its organization and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the Servicer hereby acknowledges that validity and enforceability of this Agreement and each Facility Document to which it is a party and each other instrument or agreement necessary or appropriate for the Purchasers, the Purchaser Agents proper administration hereof and the Administrator are entering into permit and effectuate the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Seller’s identity as a legal entity hereby;
(ii) maintain its own deposit account or accounts, 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 Vistrathe Borrower or any of its Affiliates, with commercial banking institutions. The funds of the Servicer, each Originator, Company will not be diverted to any other Person or for other than the use of the Company and the funds of the Company shall not be commingled with those of the Borrower or any of its Affiliates;
(iii) to the extent that the Company contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among the Company and such entities for whose benefit the goods and services are provided, and the Company and each such entity shall bear its fair share of such costs. All material transactions between the Company and any of its Affiliates shall be only on an arm's-length basis;
(iv) maintain a principal executive and administrative office through which its business is conducted and a telephone number separate from the Borrower and its Affiliates;
(v) conduct its affairs strictly in accordance with its certificate of formation and observe all necessary, appropriate and customary formalities relating to limited liability companies, including, but not limited to, holding all regular and special members' and managers' meetings appropriate to authorize all action of the Company, keeping separate and accurate minutes of such meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, inter-company transaction accounts. Regular members' and managers' meetings shall be held at least annually;
(vi) ensure that decisions with respect to its business and daily operations shall be independently made by the Company (although the officer making any particular decision may also be an employee, officer or director of a division of Vistra, the Servicer, the Originators, its or their respective other Affiliates member or any other Person. Without limiting of its Affiliates) and shall not be dictated by the generality Borrower or any 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:its Affiliates;
(avii) The Seller will be a limited liability company whose primary activities are restricted act solely 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 own name and servicing of the Receivables Pool; through its own authorized officers and (iii) conducting such other activities as it deems necessary or appropriate to carry out agents. The Company shall at all times use its primary activities.own stationery;
(bviii) The Seller ensure that neither the Borrower nor any of its Affiliates shall not engage in any business or activity, or incur any indebtedness or liabilityadvance funds to the Company, other than as expressly permitted by is otherwise provided herein or in the Transaction other Facility 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 neither 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 Borrower nor 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 supply 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.Company;
(oix) The Seller shall other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it;
(x) not guarantee(A) enter into any guaranty, and shall not or otherwise be become liable, or hold itself out as responsible with respect to any obligation of any member of its the Company, the Borrower or any of their respective Affiliates or (B) seek to obtain credit or incur any obligation to any third party based upon the assets of any member of the Company, the Borrower or any of their respective Affiliates and induce any such third party to reasonably rely on the credit-worthiness of any member of the Company, the Borrower or any of their respective Affiliates.;
(pxi) The Seller maintain books and records adequate for the preparation of separate financial statements of the Company and ensure that any financial statements required of the Company shall bebe issued separately from any statements for any member of the Company, the Borrower or any of their respective Affiliates;
(xii) ensure that at all times, times it is adequately capitalized to engage in the transactions contemplated in its limited liability company agreement.;
(qxiii) Each of the Seller and the Servicer will take such other actions as are necessary on its part to ensure that the facts financial statements and assumptions set forth books and records of Company, on the one hand, and each member of the company, the Borrower and their respective Affiliates, on the other hand, reflect the separate existence of the Company; and
(xiv) not act as agent for any member of the Company, the Borrower or any of its Affiliates, but instead present itself to the public as a company separate from each such corporation and independently engaged in the opinion issued by Sidley Austin LLP, as counsel for the Seller, in connection with this Agreement relating to substantive consolidation issues, and business specified in the certificates accompanying such opinion, remain true and correct in all material respects at all timesFacility Documents.
Appears in 1 contract
Separate Existence. Each of the Seller and the Servicer WESCO hereby acknowledges that the Purchasers, the Purchaser Agents Agents, the Administrator and the Administrator Liquidity Providers 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 WESCO and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer WESCO shall take all steps specifically required by this Agreement or reasonably required by the Administrator 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, WESCO and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsWESCO, 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 WESCO shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited liability company purpose corporation whose primary activities are restricted in its limited liability company agreement to certificate of incorporation to: (i) purchasing or otherwise acquiring from any Originatorthe Originators, 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 member of the Seller’s Board of Directors (the “Independent ManagerDirector”) 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 ownerstockholder, officer, director, employee, affiliate, associate or supplier of Vistra, the Servicer WESCO 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 securitiesAffiliates. The limited liability company agreement certificate of incorporation of the Seller shall at all times provide that that: (i) the Seller’s Manager (as defined in its limited liability company agreement) Board of Directors 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 Director 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.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer WESCO or any Originator or any of their respective other Affiliates.Affiliate thereof;
(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, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(f) The Seller will contract with the Servicer, 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 . The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer WESCO (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, it being understood that the Servicer may WESCO shall 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 WESCO or any other Affiliate thereof.;
(h) All of the Seller’s business correspondence and other communications shall be conducted in the Seller’s own name and on its own separate stationery;
(i) The Seller’s books and records will be maintained separately from those of Vistra, the Servicer or WESCO and any Originator or any of their respective other Affiliates.Affiliate thereof;
(ij) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer WESCO or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that that: (i) such Affiliates are separate legal entities and the Seller’s assets and credit are not available to satisfy the debts and obligations a special purpose corporation exists as a Subsidiary of such Affiliates or any other Person WESCO, and (ii) the Seller’s Originators have sold receivables and other related assets shall be listed on the Seller’s own separate balance sheet.to such special purpose Subsidiary that, in turn, has sold undivided interests therein to certain financial institutions and other entities;
(jk) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer WESCO or any Originator or any of their respective other Affiliates.Affiliate thereof;
(kl) The Seller will strictly observe corporate formalities in its dealings with Vistra, the Servicer WESCO or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer WESCO or any Originator or any of their respective other Affiliates Affiliate thereof except as permitted by this AgreementAgreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer WESCO or any Originator or any of their respective Affiliate thereof (other Affiliates than WESCO in its capacity as the Servicer) has independent access.. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of WESCO or any Subsidiary or other Affiliate of WESCO. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(lm) The Seller will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator WESCO (and any of their other AffiliatesAffiliate thereof). 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, Seller nor the Servicer or any Originator, on the other, WESCO 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 WESCO will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity.; and
(mn) None of Vistra, the Servicer or other Originator WESCO shall not pay the salaries of Seller’s employees, if any.. Each of the following shall be a “Termination Event”:
(ni) No Affiliate of the Seller shall advance funds to, or guaranty debts of, the Seller, WESCO, any Originator or the Servicer shall fail to perform or observe any term, covenant or agreement under this Agreement or any other Transaction Document and, except as otherwise provided herein herein, such failure shall continue for 5 days after knowledge or in the other Transaction Documents; providednotice thereof, that an Affiliate of (ii) the Seller may provide funds or the Servicer shall fail to make when due any payment or deposit to be made by it under this Agreement and such failure shall continue unremedied for one Business Day, (iii) WESCO shall resign as Servicer, and no successor Servicer reasonably satisfactory 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 Administrator and the Majority Purchasers shall have been appointed or (iv) the Seller, WESCO, any Originator or the Servicer will take such other actions as are necessary on its part shall fail to ensure that the facts and assumptions perform or observe any term, covenant set forth in the opinion issued Sections 1(bb) or (cc) or Sections 2(t) or (u) of Exhibit III or Sections 1(r) or 2(j) of Exhibit IV to this Agreement;
(b) WESCO (or any Affiliate thereof) shall fail to transfer to any successor Servicer when required any rights pursuant to this Agreement that WESCO (or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by Sidley Austin LLP, as counsel for the Seller, WESCO or any Originator (or any of their respective officers) under or in connection with this Agreement or any other Transaction Document, or any information or report delivered by the Seller, WESCO or any Originator or the Servicer pursuant to this Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered, and shall remain incorrect or untrue for 5 days after notice to the Seller or the Servicer of such inaccuracy;
(d) the Seller or the Servicer shall fail to deliver the Information Package or Daily Report pursuant to this Agreement, and such failure shall remain unremedied for two days;
(e) this Agreement or any Purchase or reinvestment pursuant to this Agreement shall for any reason: (i) cease to create, or the Purchased Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage ownership or security interest to the extent of the Purchased Interest in each Pool Receivable, the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, or (ii) cease to create with respect to the Pool Assets, or the interest of the Administrator (for the benefit of the Purchasers) with respect to such Pool Assets shall cease to be, a valid and enforceable first priority perfected security interest, free and clear of any Adverse Claim;
(f) the Seller, WESCO, Holdings or any Originator shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller, WESCO, Holdings or any Originator seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to substantive consolidation issuesbankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Seller, WESCO, Holdings or any Originator shall take any corporate action to authorize any of the actions set forth above in this paragraph;
(i) the average for three most recently ended consecutive calendar months of: (A) the Default Ratio shall exceed 3.25%, (B) the Delinquency Ratio shall exceed 4.00% or (C) the Dilution Ratio shall exceed 7.50% or (ii) (A) the Default Ratio shall exceed 4.00%, (B) the Delinquency Ratio shall exceed 5.00% or (C) the Days’ Sales Outstanding shall exceed 62 days;
(h) a Change in Control shall occur;
(i) at any time (i) the sum of (A) the Aggregate Investment plus (B) the Total Reserves, exceeds (ii) the sum of (A) the Net Receivables Pool Balance at such time plus (B) the Purchasers’ share of the amount of Collections then on deposit in the Lock-Box Accounts (other than (I) amounts on deposit in the Exception Accounts and (II) amounts set aside in the Lock-Box Accounts representing Discount and Fees), and such circumstance shall not have been cured within two Business Days after an officer of the Seller, the Servicer, WESCO, Holdings or any Originator obtains knowledge or notice thereof;
(i) WESCO, Holdings or any of their respective Subsidiaries shall fail to pay any principal of or premium or interest on any of its Debt that is outstanding in a principal amount of at least $50,000,000 in the aggregate when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in this Agreement, mortgage, indenture or instrument relating to such Debt (and shall have not been waived); or (ii) any other event shall occur or condition shall exist under any agreement, mortgage, indenture or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement, mortgage, indenture or instrument (and shall have not been waived), if, in either case: (a) the effect of such non-payment, event or condition is to give the applicable debtholders the right (whether acted upon or not) to accelerate the maturity of such Debt, or (b) any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Debt shall be required to be made, in each case before the stated maturity thereof;
(k) either: (i) a contribution failure shall occur with respect to any Benefit Plan sufficient to give rise to a lien under Section 303(k) of ERISA, and such failure could reasonably be expected to result in a Material Adverse Effect, (ii) the Internal Revenue Service shall file a notice of lien asserting (1) a claim or claims pursuant to the Internal Revenue Code with regard to any of the assets of Seller or (2) a claim or claims pursuant to the Internal Revenue Code with regard to any of the assets of any Originator, WESCO, Holdings or any ERISA Affiliate, and in each case such lien could reasonably be expected to result in a Material Adverse Effect and shall have been filed and not released within 10 days, or (iii) the certificates accompanying Pension Benefit Guaranty Corporation shall, or shall indicate its intention in writing to the Seller, any Originator, WESCO, Holdings or any ERISA Affiliate to, either file a notice of lien asserting a claim pursuant to ERISA with regard to any assets of the Seller, any Originator, WESCO, Holdings or any ERISA Affiliate or terminate any Benefit Plan that has unfunded benefit liabilities, or any steps shall have been taken to terminate any Benefit Plan subject to Title IV of ERISA, in each case, as could reasonably be expected to result in a Material Adverse Effect and such opinionlien shall have been filed and not released within 10 days;
(l) (i) one or more final judgments for the payment of money shall be entered against the Seller or (ii) one or more final judgments for the payment of money in an amount in excess of $50,000,000, remain true individually or in the aggregate, shall be entered against the Servicer on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and correct such judgment shall continue unsatisfied and in all material respects at all times.effect for sixty (60) consecutive days without a stay of execution;
Appears in 1 contract
Sources: Receivables Purchase Agreement (Wesco International Inc)
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 any Originator, the Servicer, each Originator, Vistra ▇▇▇▇▇ Corning 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 or reasonably required by the Administrator, any Purchaser Agent or any Purchaser 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▇▇▇▇▇ Corning, the ServicerOriginators, each Originator, the Servicer and any other Person, and is not a division of Vistra▇▇▇▇▇ Corning, the Originators, 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 ▇▇▇▇▇ Corning shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited liability company whose primary activities are restricted in its limited liability company agreement to LLC Agreement to: (i) purchasing or otherwise acquiring from any the Originator, owning, holding, granting security interests or selling interests in Pool Assets; , (ii) entering into agreements for the selling selling, servicing and servicing financing of the Receivables Pool; Pool (including the Transaction Documents), 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 activityactivity except as set forth in this Agreement nor, or incur any indebtedness or liability, liability other than as expressly permitted by the Transaction Documents.;
(ci) Not less than one independent manager member of the Seller’s board of directors (the “Independent ManagerDirector”) shall be an individual a natural person (A) who (i) is not, and has not been 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.
Appears in 1 contract
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 At 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 Datetimes:
(a) The Seller will be a limited liability company whose primary activities are restricted in maintain its limited liability company agreement to (i) purchasing own deposit account or otherwise acquiring from any Originatoraccounts, 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 separate from those of Vistraany Affiliate, 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 Sellercommercial banking institutions and, except as otherwise provided herein or in the Operative Documents, ensure that its funds will not be diverted to any other Transaction Documents; Person or for other than its own corporate uses, nor will such funds be commingled with the funds of any Affiliate (other than funds deposited to the Clearing Account or the Lock-Box, which funds may be commingled for a period not exceeding two (2) Business Days in the aggregate);
(b) to the extent that it shares the same officers or other employees as any of its Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees;
(c) to the extent that it jointly contracts with any of its Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that it contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods or services are provided, and each such entity shall bear its fair share of such costs;
(d) enter into all material transactions with its Affiliates, whether currently existing or hereafter entered into, only on an arm's length basis, it being understood and agreed that an Affiliate the transactions contemplated in the Operative Documents meet the requirements of this paragraph (d);
(e) maintain office space that is separate from the office space of any of its Affiliates (other than ▇▇▇▇▇) and, to the extent that it and any of its 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;
(f) conduct its affairs strictly in accordance with its certificate of incorporation and observe all necessary, appropriate and customary corporate formalities, including, but not limited to, separate stationery, holding all regular and special stockholders' and directors' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records, financial records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(g) act solely in its own name, hold itself out as a separate entity, pay its own liabilities out of its own funds, and not assume or guarantee any 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 liabilities of any of its Affiliates.; and
(ph) The Seller shall take, or refrain from taking, as the case may 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 that are necessary on its part to ensure that the facts and assumptions set forth be taken or not to be taken in the opinion issued by Sidley Austin LLP, as counsel for the Seller, in connection order to comply 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 timesSection 5.16.
Appears in 1 contract
Separate Existence. Each of the Seller and the Servicer hereby acknowledges that the Purchasers, the Purchaser Agents Purchasers 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 Cloud Peak, the Servicer, each Originator, Vistra Originators 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 VistraCloud Peak, the Servicer, each Originator, Originators and any other Person, and is not a division of VistraCloud Peak, the Servicer, the Originators, its or their respective other Affiliates Originators 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 Datethat:
(a) The Seller will be a limited liability company whose primary activities are restricted in its limited liability company operating agreement to to: (i) purchasing or otherwise acquiring from any Originatorthe Originators, 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 liabilityliability (including, without limitation, any assumption or guaranty of any obligation of Cloud Peak, any Originator or any Affiliate thereof), other than as expressly permitted by the Transaction Documents.;
(ci) Not less than one independent manager member of the Seller’s board of managers or other governing body (the “Independent ManagerDirector”) shall be an individual a natural person (A) who (i) is not, not at the time of initial appointment and has not been at any time during the five-year period prior to his or her appointment as five (5) years preceding such appointment: (1) an equityholder, director (other than the Independent Manager been, a direct, indirect or beneficial ownerDirector), officer, employee, member, manager, attorney or partner of Cloud Peak, Seller or any of their Affiliates; (2) a customer of, supplier to or other person who derives more than 1% of its purchases or revenues from its activities with Cloud Peak, Seller or any of their Affiliates; (3) a person or other entity controlling, controlled by or under common control with any such equity holder, partner, member, manager customer, supplier or other person; or (4) a member of the immediate family of any such equity holder, director, officer, employee, affiliatemember, associate manager, partner, customer, supplier or supplier of Vistra, the Servicer or any of its or their Affiliates other person and (other than his or her service B) who has (x) prior experience as an independent director for a corporation or an independent manager of a limited liability company whose charter documents required the unanimous consent of all independent director or in independent managers thereof before such corporation could consent to the institution of bankruptcy or insolvency proceedings against it or could file a similar capacity of petition seeking relief under any such Person); applicable federal or state law relating to bankruptcy and (iiy) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. Under this clause (c), 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, by contract or otherwise. (ii) The limited liability company operating agreement of the Seller shall at all times provide that that: (iA) the Seller’s Manager (as defined in its limited liability company agreement) 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 Seller unless the Manager and the Independent Manager Director shall approve the taking of such action in writing before the taking of such action; , and (iiB) such provision and each other provision requiring an Independent Director cannot be amended without the prior written consent of the Independent Manager.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, VistraCloud Peak, the Servicer or any Originator or any of their respective other Affiliates.;
(e) The Seller shall conduct its affairs strictly in accordance with its organizational documents and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and board of managers’ meetings appropriate to authorize all limited liability company action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(f) Any employee, consultant or agent of the Seller will be compensated from the Seller’s funds for services provided to the Seller, and to the extent that Seller shares the same officers or other employees as Cloud Peak or any Originator (or any other Affiliate thereof), the salaries and expenses relating 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 such common officers and employees. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(fg) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the Seller will not incur any material indirect or overhead expenses for items shared with Vistra Cloud Peak or the Servicer any Originators (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; providedit being understood that Cloud Peak, that the Servicer may in its capacity as Servicer, shall 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.;
(gh) The Seller’s operating expenses will not be paid by Vistra, the Servicer, Cloud Peak or any Originator or any other Affiliate thereof.;
(hi) The Seller will have its own separate stationery;
(j) The Seller’s books and records will be maintained separately from those of VistraCloud Peak, each Originator and any other Affiliate thereof and in a manner such that it will not be difficult or costly to segregate, ascertain or otherwise identify the Servicer assets and liabilities of Seller;
(k) All financial statements of Cloud Peak or any Originator or any of their respective other Affiliates.
Affiliate thereof that are consolidated to include Seller will disclose that (i) The the Seller’s sole business consists of the purchase or acceptance through capital contributions of the Receivables and Related Rights from such Originator and the subsequent retransfer of or granting of a security interest in such Receivables and Related Rights to certain purchasers party to this Agreement, (ii) the Seller is a separate legal entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the Seller’s assets shall not be included prior to any assets or value in the consolidated financial statements Seller becoming available to the Seller’s equity holders and (iii) the assets of Vistra, the Servicer Seller are not available to pay creditors of Cloud Peak 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 Cloud Peak or any other Person and (ii) the Seller’s assets shall be listed on the Seller’s own separate balance sheet.Originator;
(jl) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of VistraCloud Peak, the Servicer or any Originator or any of their respective other Affiliates.Affiliates thereof;
(km) The Seller will strictly observe corporate formalities in its dealings with VistraCloud Peak, the Servicer or each Originator and any Originator or any of their respective other AffiliatesAffiliates thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of VistraCloud Peak, the Servicer or any Originator or any of their respective other Affiliates thereof except as permitted by this AgreementAgreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which VistraCloud Peak or any Affiliate thereof (other than Cloud Peak in its capacity as the Servicer) has independent access. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the Servicer or property of Cloud Peak, any Originator or any of their respective Subsidiaries or other Affiliates has independent access.thereof. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(ln) The Seller will maintain arm’s-length relationships with Cloud Peak, each of Vistra, the Servicer or any Originator (and any of their other Affiliates)Affiliates thereof. 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, Seller on the one hand, nor the Servicer Cloud Peak or any Originator, on the otherother hand, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other. The Seller Seller, Cloud Peak and the Servicer each Originator will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single 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 guaranteehave a separate area from Cloud Peak and each Originator for its business (which may be located at the same address as such entities) and to the extent that any other such entity has offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall not otherwise be liable, with respect to any obligation bear its fair share of any of its Affiliates.such expenses; and
(p) The To the extent not already covered in paragraphs (a) through (o) above, Seller shall be, at all times, adequately capitalized to engage comply and/or act in accordance with the transactions contemplated in its limited liability company agreement.
(q) provisions of Section 6.4 of the Purchase and Sale Agreement. 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 following shall be a “Termination Event”:
(i) the Seller, Cloud Peak, any Originator or the Servicer shall fail to perform or observe any term, covenant or agreement under this Agreement or any other Transaction Document and, except as otherwise provided herein, such failure shall, solely to the extent capable of cure, continue for thirty days after the earlier of any such Person’s knowledge or notice thereof or (ii) the Seller or the Servicer shall fail to make when due any payment or deposit to be made by it under this Agreement or any other Transaction Document and such failure shall remain unremedied for three Business Days;
(b) Cloud Peak (or any Affiliate thereof) shall fail to transfer to any successor Servicer, when required, any rights pursuant to this Agreement that Cloud Peak (or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the Seller, the Servicer or any Originator (or any of their respective officers) under or in connection with this Agreement relating or any other Transaction Document, or any information or report delivered by the Seller, the Servicer or any Originator pursuant to substantive consolidation issuesthis Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered and, if the representation or warranty is of a type that is capable of being cured, shall remain incorrect or untrue for thirty days after the earlier of such Person’s knowledge or notice thereof;
(d) the Seller or the Servicer shall fail to deliver any Information Package or Interim Report when due pursuant to this Agreement, and such failure shall remain unremedied for one Business Day;
(e) this Agreement (and each Lock-Box Agreement, as applicable) or any purchase or reinvestment pursuant to this Agreement shall for any reason: (i) cease to create, or the Purchased Interest shall for any reason cease to be, a valid and enforceable first priority perfected undivided percentage ownership or security interest to the extent of the Purchased Interest in each Pool Receivable, the Related Security and Collections with respect thereto, free and clear of any Adverse Claim (other than Permitted Liens), or (ii) cease to create with respect to the Pool Assets, or the interest of the Administrator (for the benefit of the Administrator, the Purchaser Agents and the Purchasers) with respect to such Pool Assets shall cease to be, a valid and enforceable first priority perfected security interest, free and clear of any Adverse Claim (other than Permitted Liens);
(f) (A) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Seller or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Seller or for a substantial part of its assets, (B) the Seller shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to consent in a timely and appropriate manner, any proceeding or petition described in clause (A) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Seller or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing or (C) the Seller shall become unable, admit in writing its inability or fail generally to pay its debts as they become due,
(g) any of the following shall occur:
(i) the Default Ratio shall exceed 3.00%;
(ii) the average Default Ratio for any three consecutive calendar months shall exceed 2.00%;
(iii) the Delinquency Ratio shall exceed 4.50%;
(iv) the average Delinquency Ratio for any three consecutive calendar months shall exceed 3.50%;
(v) the average Dilution Ratio for any three consecutive calendar months shall exceed 3.00%; or
(vi) the Days’ Sales Outstanding shall exceed 40 days;
(h) a Change in Control shall occur;
(i) the Purchased Interest shall exceed 100% for two (2) consecutive Business Days;
(j) (i) the Parent, Cloud Peak or any of their respective Subsidiaries fail to pay any principal of or premium or interest on any Material Debt when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), which failure continues after the applicable grace period, if any, specified in the certificates accompanying related Material Debt Agreement (whether or not such opinionfailure is waived under any related Material Debt Agreement); (ii) any other event or condition occurs or exists under, remain true and correct continues to exist after the applicable grace period, in all material respects at all times.any, specified in, any Material Debt Agreement, which event or condition gives th
Appears in 1 contract
Sources: Receivables Purchase Agreement (Cloud Peak Energy Inc.)
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.entities
Appears in 1 contract
Sources: Receivables Purchase Agreement (Vistra Energy Corp.)
Separate Existence. Each of the Seller and the Servicer UGI hereby acknowledges that the Purchasers, the Purchaser Agents Issuer and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from UGI, the Servicer, each Originator, Vistra Performance Guarantor and their respective other Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer UGI shall take all steps specifically required by this the Agreement or reasonably required by the Administrator to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of VistraUGI, the Servicer, each Originator, Performance Guarantor and any other Person, and is not a division of VistraUGI, the ServicerPerformance Guarantor, 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 UGI shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited liability company purpose corporation whose primary activities are restricted in its limited liability company agreement to certificate of incorporation to: (i) purchasing or otherwise acquiring from any Originatorthe Originator (or its Affiliates), owning, holding, granting security interests or selling interests in Pool Assets; Assets (or other receivables originated by the Originator or its Affiliates, and certain related assets), (ii) entering into agreements for the selling and servicing of the Receivables Pool; Pool (or other receivables pools originated by the Originator or its Affiliates), 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 member of the Seller's Board of Directors (the “"Independent Manager”Director") 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 ownerstockholder, officer, director, employee, affiliate, associate or supplier of VistraUGI, the Servicer Performance Guarantor 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 securitiesAffiliates. The limited liability company agreement certificate of incorporation of the Seller shall at all times provide that that: (i) the Seller’s Manager (as defined in its limited liability company agreement) 's Board of Directors 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 Director 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.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, VistraUGI, the Servicer Performance Guarantor or any Originator or any of their respective other Affiliates.Affiliate thereof;
(e) Any employee, consultant or agent of the Seller will be compensated from the Seller’s 's funds for services provided to the Seller. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee;
(f) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra UGI or the Servicer Performance Guarantor (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 '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, it being understood that the Servicer may UGI shall 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 's operating expenses will not be paid by VistraUGI , the Servicer, any Originator Performance Guarantor or any other Affiliate thereof.;
(h) All of the Seller's business correspondence and other communications shall be conducted in the Seller's own name and on its own separate stationery;
(i) The Seller’s 's books and records will be maintained separately from those of VistraUGI, the Servicer or Performance Guarantor and any Originator or any of their respective other Affiliates.Affiliate thereof;
(ij) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer UGI or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that that: (i) a special purpose corporation exists as a Subsidiary of UGI, (ii) the Originator has sold receivables and other related assets to such Affiliates are separate legal special purpose Subsidiary that, in turn, has sold undivided interests therein to certain financial institutions and other entities and (iii) that the Seller’s special purpose Subsidiary's assets and credit are not available to satisfy the debts and obligations of such Affiliates UGI, the Performance Guarantor or any other Person and (ii) the Seller’s assets shall be listed on the Seller’s own separate balance sheet.Affiliate;
(jk) The Seller’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of VistraUGI, the Servicer Performance Guarantor or any Originator or any of their respective other Affiliates.Affiliate thereof;
(kl) The Seller will strictly observe corporate formalities in its dealings with VistraUGI, the Servicer Performance Guarantor or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of VistraUGI, the Servicer Performance Guarantor or any Originator or any of their respective other Affiliates Affiliate thereof except as permitted by this Agreementthe Agreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which VistraUGI, the Servicer Performance Guarantor or any Originator or any Affiliate thereof (other than UGI in its capacity of their respective other Affiliates Servicer) has independent access.. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy (other than directors and officers liability and credit insurance policies) with respect to any loss relating to the property of UGI, the Performance Guarantor or any Subsidiary or other Affiliate of UGI. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(lm) The Seller will maintain arm’sarm's-length relationships with each of Vistra, UGI and the Servicer or any Originator Performance Guarantor (and any of their other AffiliatesAffiliate thereof). 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, Seller nor the Servicer or any Originator, on the other, UGI will be or will hold itself out to be responsible for the debts of the other (or of the Performance Guarantor) or the decisions or actions respecting the daily business and affairs of the otherother (or of the Performance Guarantor). The Seller and the Servicer UGI will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single economic unit with respect to each other (or with respect to the Performance Guarantor) or in their dealing with any other entity.; and
(mn) None of Vistra, Neither UGI nor the Servicer or other Originator Performance Guarantor shall pay the salaries of Seller’s 's employees, if any.. EXHIBIT V TERMINATION EVENTS Each of the following shall be a "Termination Event":
(ni) No Affiliate of the Seller shall advance funds toSeller, or guaranty debts ofUGI, the SellerOriginator or the Servicer (if UGI or any of its Affiliates) shall fail to perform or observe in any material respect any term, covenant or agreement under the Agreement or any other Transaction Document and, except as otherwise provided herein herein, such failure shall continue for thirty days after knowledge or in the other Transaction Documents; providednotice thereof, that an Affiliate of (ii) the Seller may provide funds or the Servicer shall fail to make when due any payment or deposit to be made by it under the Agreement and such failure shall continue unremedied for two (2) Business Days or (iii) UGI shall resign as Servicer, and no successor Servicer reasonably satisfactory to the Seller Administrator shall have been appointed;
(b) UGI (or any Affiliate thereof) shall fail to transfer to any successor Servicer when required any rights pursuant to the Agreement that UGI (or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the Seller, UGI or the Originator (or any of their respective officers) under or in connection with its capitalization.
the Agreement or any other Transaction Document, or any written information or report delivered by the Seller, UGI or the Originator or the Servicer pursuant to the Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any respect when made or deemed made (opursuant to paragraph 2(b) The Seller shall not guarantee, and shall not otherwise be liable, of Exhibit II hereof or with respect to any obligation Information Package) or delivered; provided, however, if the violation of this paragraph (c) by the Seller or the Servicer may be cured without any potential or actual detriment to the Purchaser, the Administrator, or any Program Support Provider, the Seller or the Servicer as applicable shall have 30 days from the earlier of (i) such Person's knowledge of such failure and (ii) notice to such Person of such failure to cure any such violation, before a Termination Event shall occur so long as such Person is diligently attempting to effect such cure;
(d) the Seller or the Servicer shall fail to deliver the Information Package pursuant to the Agreement, and such failure shall remain unremedied for two Business Days;
(e) the Agreement or any purchase or reinvestment pursuant to the Agreement shall for any reason: (i) cease to create, or the Purchased Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage ownership or security interest to the extent of the Purchased Interest in each Pool Receivable, the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, or (ii) cease to create with respect to the Pool Assets, or the interest of the Issuer with respect to such Pool Assets shall cease to be, a valid and enforceable first priority perfected security interest, free and clear of any Adverse Claim;
(f) the Seller, UGI, the Performance Guarantor or the Originator shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller, UGI, the Performance Guarantor or the Originator seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Seller, UGI, the Performance Guarantor or the Originator shall take any corporate action to authorize any of the actions set forth above in this paragraph;
(i) the (A) Default Ratio shall exceed 4.0% or (B) Delinquency Ratio shall exceed 13.0% or (ii) the average for three consecutive calendar months of (A) the Default Ratio shall exceed 2.50%, (B) the Delinquency Ratio shall exceed 12.0% or (C) the Dilution Ratio shall exceed 2.75%;
(h) a Change in Control shall occur with respect to the Seller, the Originator or UGI,
(i) at any time (i) the sum of (A) the Capital plus (B) the Total Reserves, exceeds (ii) the sum of (A) the Net Receivables Pool Balance at such time plus (B) the Issuer's Share of the amount of Collections then on deposit in the Lock-Box Accounts (other than amounts set aside therein representing Discount and fees), and such circumstance shall not have been cured within five (5) Business Days of becoming aware thereof;
(i) UGI or any of its Affiliates.Subsidiaries shall fail to pay any principal of or premium or interest on any of its Debt that is outstanding in a principal amount of at least $5,000,000 in the aggregate when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement, mortgage, indenture or instrument relating to such Debt (and shall have not been waived); or (ii) any other event shall occur or condition shall exist under any agreement, mortgage, indenture or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement, mortgage, indenture or instrument (and shall have not been waived), if, in either case: (a) the effect of such non-payment, event or condition is to give the applicable debt holders the right (whether acted upon or not) to accelerate the maturity of such Debt, or (b) any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Debt shall be required to be made, in each case before the stated maturity thereof;
(pk) The either: (i) a contribution failure shall occur with respect to any Benefit Plan sufficient to give rise to a lien under Section 302(f) of ERISA, (ii) the Internal Revenue Service shall file a notice of lien asserting a claim or claims pursuant to the Internal Revenue Code with regard to any of the assets of Seller, the Originator or any ERISA Affiliate and such lien shall have been filed and not released within 10 days, or (iii) the Pension Benefit Guaranty Corporation shall, or shall indicate its intention in writing to the Seller, the Originator or any ERISA Affiliate to, either file a notice of lien asserting a claim pursuant to ERISA with regard to any assets of the Seller, the Originator or any ERISA Affiliate or terminate any Benefit Plan subject to Title IV of ERISA that has unfunded benefit liabilities, or any steps shall have been taken to terminate any Benefit Plan subject to Title IV of ERISA that has unfunded benefit liabilities so as to result in any material liability to the Seller or the Originator and such lien shall behave been filed and not released within 10 days;
(i) one or more final and unappealable judgments for the payment of money shall be entered against the Seller or (ii) one or more final and unappealable judgments for the payment of money in an amount in excess of $20,000,000, at all times, adequately capitalized to engage individually or in the transactions contemplated aggregate, shall be entered against the Servicer or the Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in its limited liability company agreement.effect for sixty (60) consecutive days without a stay of execution;
(qm) Each of the Seller and the Servicer will take such other actions as are necessary on its part UGI Corporation shall at any time (i) fail to ensure that the facts and assumptions perform, maintain or observe any representation, warranty, covenant or agreement set forth in the opinion issued by Sidley Austin LLP, Performance Guaranty or (ii) repudiate any of its obligations under the Performance Guaranty; or
(n) the "Purchase and Sale Termination Date" under and as counsel for the Seller, in connection with this Agreement relating to substantive consolidation issues, and defined in the certificates accompanying such opinionPurchase and Sale Agreement shall occur under the Purchase and Sale Agreement or the Originator shall for any reason cease to transfer, remain true or cease to have the legal capacity to transfer, or otherwise be incapable of transferring Receivables to the Seller under the Purchase and correct Sale Agreement. EXHIBIT VI SUPPLEMENTAL PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS In addition to the representations, warranties and covenants contained in all material respects at all times.Exhibit III hereof, th
Appears in 1 contract
Separate Existence. Each of the Seller and the Servicer WESCO hereby acknowledges that the Purchasers, the Purchaser Agents Agents, the Administrator and the Administrator Liquidity Providers 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 WESCO and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer WESCO shall take all steps specifically required by this Agreement or reasonably required by the Administrator 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, WESCO and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsWESCO, 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 WESCO shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited liability company purpose corporation whose primary activities are restricted in its limited liability company agreement to certificate of incorporation to: (i) purchasing or otherwise acquiring from any Originatorthe Originators, 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 member of the Seller’s Board of Directors (the “Independent ManagerDirector”) 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 ownerstockholder, officer, director, employee, affiliate, associate or supplier of Vistra, the Servicer WESCO 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 securitiesAffiliates. The limited liability company agreement certificate of incorporation of the Seller shall at all times provide that that: (i) the Seller’s Manager (as defined in its limited liability company agreement) Board of Directors 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 Director 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.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer WESCO or any Originator or any of their respective other Affiliates.Affiliate thereof;
(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, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(f) The Seller will contract with the Servicer, 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 . The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer WESCO (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, it being understood that the Servicer may WESCO shall 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 WESCO or any other Affiliate thereof.;
(h) All of the Seller’s business correspondence and other communications shall be conducted in the Seller’s own name and on its own separate stationery;
(i) The Seller’s books and records will be maintained separately from those of Vistra, the Servicer or WESCO and any Originator or any of their respective other Affiliates.Affiliate thereof;
(ij) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer WESCO or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that that: (i) such Affiliates are separate legal entities and the Seller’s assets and credit are not available to satisfy the debts and obligations a special purpose corporation exists as a Subsidiary of such Affiliates or any other Person WESCO, and (ii) the Seller’s Originators have sold receivables and other related assets shall be listed on the Seller’s own separate balance sheet.to such special purpose Subsidiary that, in turn, has sold undivided interests therein to certain financial institutions and other entities;
(jk) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer WESCO or any Originator or any of their respective other Affiliates.Affiliate thereof;
(kl) The Seller will strictly observe corporate formalities in its dealings with Vistra, the Servicer WESCO or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer WESCO or any Originator or any of their respective other Affiliates Affiliate thereof except as permitted by this AgreementAgreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer WESCO or any Originator or any of their respective Affiliate thereof (other Affiliates than WESCO in its capacity as the Servicer) has independent access.. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of WESCO or any Subsidiary or other Affiliate of WESCO. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(lm) The Seller will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator WESCO (and any of their other AffiliatesAffiliate thereof). 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, Seller nor the Servicer or any Originator, on the other, WESCO 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 WESCO will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity.; and
(mn) None of Vistra, the Servicer or other Originator WESCO shall not pay the salaries of Seller’s employees, if any.. Each of the following shall be a “Termination Event”:
(ni) No Affiliate of the Seller shall advance funds to, or guaranty debts of, the Seller, WESCO, any Originator or the Servicer shall fail to perform or observe any term, covenant or agreement under this Agreement or any other Transaction Document and, except as otherwise provided herein herein, such failure shall continue for 5 days after knowledge or in the other Transaction Documents; providednotice thereof, that an Affiliate of (ii) the Seller may provide funds or the Servicer shall fail to make when due any payment or deposit to be made by it under this Agreement and such failure shall continue unremedied for one Business Day, (iii) WESCO shall resign as Servicer, and no successor Servicer reasonably satisfactory 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 Administrator and the Majority Purchasers shall have been appointed or (iv) the Seller, WESCO, any Originator or the Servicer will take such other actions as are necessary on its part shall fail to ensure that the facts and assumptions perform or observe any term, covenant set forth in the opinion issued by Sidley Austin LLP, as counsel for the Seller, in connection with Sections 1(bb) or (cc) or Sections 2(t) or (u) of Exhibit III or Sections 1(r) or 2(j) of Exhibit IV to 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.Agreement;
Appears in 1 contract
Sources: Receivables Purchase Agreement (Wesco International Inc)
Separate Existence. Each of the Seller and the Servicer hereby acknowledges that the Purchasers, the Purchaser Agents Purchasers 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 Swift, the Servicer, each Originator, Vistra Originators 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 or reasonably required by the Administrator or any Purchaser Agent 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 VistraSwift, the Servicer, each Originator, any Originator and any other Person, and is not a division of VistraSwift, the Servicer, the Originators, its or their respective other Affiliates any Originator 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 Datethat:
(a) The Seller will be a limited liability company whose primary activities are restricted in its limited liability company operating agreement to to: (i) purchasing or otherwise acquiring from any Originatorthe Originators, 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 liabilityliability (including, without limitation, any assumption or guaranty of any obligation of Swift, any Originator or any Affiliate thereof), other than as expressly permitted by the Transaction Documents.;
(c) Not At all times have a Board of Managers and not less than one independent manager (the “Independent Manager”) member of Seller’s Board of Managers shall be an individual who (iA) is not, and has not at any time during the five-year period (1) prior to his experience as an Independent Director or her appointment as Independent Manager been, for a direct, indirect corporation or beneficial owner, officer, director, employee, affiliate, associate limited liability company whose charter documents required the unanimous consent of all Independent Directors or supplier Independent Managers thereof before such corporation or limited liability company could consent to the institution of Vistra, the Servicer bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any of its applicable federal or their Affiliates (other than his or her service as an independent manager or in a similar capacity of any such Person); state law relating to bankruptcy and (ii2) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. The , (B) is reasonably acceptable to the Administrator as evidenced in a writing executed by the Administrator (it being understood and agreed that any equity owner, manager or employee of Global Securitization Services, LLC or Lord Securities Corporation is hereby consented to by the Administrator), (C) is not, and has not been for a period of five years prior to his or her appointment as an Independent Manager of the Seller:
(1) a member (whether direct, indirect or beneficial), customer, advisor or supplier of Swift or any of its respective Affiliates, (2) a director, officer, employee, partner, attorney or consultant of ▇▇▇▇▇ or any of its Affiliates (Swift and its Affiliates other than the Seller being hereinafter referred to as the “Parent Group”), (3) a person related to any person referred to in clauses (1) or (2) above, (4) a person or other entity controlling or under common control with any such stockholder, partner, customer, supplier, employee, officer or director or (5) a trustee, conservator or receiver for any member of the Parent Group and (D) shall not at any time serve as a trustee in bankruptcy for the Seller, ▇▇▇▇▇ or any Affiliate thereof (such an individual meeting the requirements set forth above, the “Independent Manager”) and causing its limited liability company agreement of the Seller shall at all times to provide that (iw) at least one member of the Seller’s Board of Managers shall be an Independent Manager, (x) the Seller’s Manager (as defined in its limited liability company agreement) Board of Managers shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Seller unless a unanimous vote of the Manager and Seller’s Board of Managers (which vote shall include the affirmative vote of all Independent Manager Managers) shall approve the taking of such action in writing before prior to the taking of such action; , (y) the Seller’s Board of Managers shall not vote on any matter requiring the vote of its Independent Managers under its certificate of formation unless and until at least one Independent Manager is then serving on the Seller’s Board of Managers and (iiz) such the provisions requiring an Independent Manager and the provision described in clauses (x) and (y) of this paragraph (c) cannot be amended without the prior written consent of the Independent Manager.
(d) The each Independent Manager shall not at any time serve (it being understood that, as a trustee used in bankruptcy for this paragraph (c), “control” means the Seller, Vistra, the Servicer possession directly or any Originator or any of their respective other Affiliates.
(e) Any employee, consultant or agent indirectly of the Seller will be compensated from power to direct or cause the Seller’s funds for services provided to the Seller. The Seller will not engage any agents other than its attorneysdirection of management policies or activities of a person or entity whether through ownership of voting securities, 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 Affiliatesotherwise). 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.;
Appears in 1 contract
Sources: Receivables Purchase Agreement (Knight-Swift Transportation Holdings Inc.)
Separate Existence. Each of the Seller The Borrower will not
(a) fail to do all things necessary to maintain its corporate existence separate 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 apart from the Servicer, each Originator, Vistra and their respective other Affiliates. Therefore, from and after the date hereof, each of the Seller Sellers, any division of any of the Sellers and any Affiliate of any of the Servicer shall take Sellers, including, failing to hold regular meetings of its stockholders and Board of Directors and failing to maintain its stockholders and Board of Directors minute books and other corporate books and records on a current basis;
(b) permit any limitation on the authority of its own directors and officers to conduct its business and affairs in accordance with their independent business judgment, or authorize or permit any Person other than its own officers and directors to act on its own behalf with respect to matters (other than matters customarily delegated to others under powers of attorney) for which a corporation's own officers and directors would customarily be responsible;
(c) fail to (i) maintain or cause to be maintained by an agent under the Borrower's control physical possession of all steps specifically required by this Agreement to continue its books and records, (ii) maintain capitalization adequate for the Seller’s identity as a separate legal entity conduct of its business, (iii) account for and to make it apparent to third Persons that the Seller is an entity with assets and manage all of its liabilities distinct separately from those of Vistra, the Servicer, each Originator, and any other Person, including, payment by it of all payroll and is not a division other administrative expenses and taxes from its own assets, (iv) segregate and identify or cause to be segregated and identified separately all its assets from those of Vistra, the Servicer, the Originators, its or their respective other Affiliates or any other Person. Without limiting the generality , (v) maintain its own officers and directors or (vi) maintain separate offices with a separate telephone number from those of any of the foregoing and in addition to and consistent with the other covenants set forth herein, each Sellers or any Affiliate of any 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.Sellers;
(d) The Independent Manager shall not at commingle or permit the commingling of its funds with the funds of any time serve as a trustee in bankruptcy for of the Seller, Vistra, the Servicer Sellers or any Originator or Affiliate of any of their respective the Sellers or use its funds for other Affiliates.than the Borrower's uses, except as permitted by the Purchase Agreement and except as the result of the failure of any Obligor to follow the payment instructions given to such Obligor under the Purchase Agreement; provided that the Borrower will use its best efforts to ensure that no such commingling or pooling occurs, to determine as promptly as possible whether it has occurred and to separate any such commingled or pooled funds as soon as possible after any such determination;
(e) Any employee, consultant commingle or agent pool or permit the commingling or pooling 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, any other member of the Servicer Parent Group or any Originator maintain or any permit the maintenance 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, any other member of the Servicer or any Originator or any of their respective other Affiliates has Parent Group would have independent access.;
(lf) The Seller will maintain arm’s-length relationships with each fail to pay its pro rata share of Vistra, the Servicer or any Originator insurance premium of the blanket insurance policy of the Parent Group; or
(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 g) be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting relating to the daily business and affairs of, or for any obligation (contingent or otherwise) of, any other member of the other. The Seller and Parent Group, or permit any other member of the Servicer will immediately correct any known misunderstanding with respect Parent Group to be or hold itself out to be responsible for the decisions or actions relating to the foregoing, daily business 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 toaffairs of, or guaranty debts for any obligation (contingent or otherwise) 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 capitalizationBorrower.
(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.
Appears in 1 contract
Separate Existence. Each of the Seller and the Servicer hereby acknowledges that the Purchasers, the Purchaser Agents Purchasers 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 Holdings, FleetCor, the ServicerOriginators, each Originator, Vistra the Sub-Originators 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 or reasonably required by the Administrator or any Purchaser Agent 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 VistraHoldings, the ServicerFleetCor, each any Originator, any Sub-Originator and any other Person, and is not a division of VistraHoldings, the ServicerFleetCor, the Originatorsany Originator, its or their respective other Affiliates any Sub-Originator 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 Datethat:
(a) The Seller will be a limited liability company whose primary activities are restricted in its limited liability company operating agreement to to: (i) purchasing or otherwise acquiring from any Originatorthe Originators or Sub-Originators, 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 liabilityliability (including, without limitation, any assumption or guaranty of any obligation of Holdings, FleetCor, any Originator, any Sub-Originator or any Affiliate thereof), other than as expressly permitted by the Transaction Documents.;
(ci) Not less than one independent manager member of the Seller’s Board of Directors (the “Independent ManagerDirector”) shall be an individual a natural person (A) who (i) is not, not at the time of initial appointment and has not been at any time during the five-year period prior to his or her appointment as five (5) years preceding such appointment: (1) an equityholder, director (other than the Independent Manager been, a direct, indirect or beneficial ownerDirector), officer, employee, member, manager, attorney or partner of Holdings, FleetCor, Seller or any of their Affiliates; (2) a customer of, supplier to or other person who derives more than 1% of its purchases or revenues from its activities with Holdings, FleetCor, Seller or any of their Affiliates; (3) a person or other entity controlling, controlled by or under common control with any such equity holder, partner, member, manager customer, supplier or other person; or (4) a member of the immediate family of any such equity holder, director, officer, employee, affiliatemember, associate manager, partner, customer, supplier or supplier of Vistra, the Servicer or any of its or their Affiliates other person and (other than his or her service B) who has (x) prior experience as an independent director for a corporation or an independent manager of a limited liability company whose charter documents required the unanimous consent of all independent director or in independent managers thereof before such corporation could consent to the institution of bankruptcy or insolvency proceedings against it or could file a similar capacity of petition seeking relief under any such Person); applicable federal or state law relating to bankruptcy and (iiy) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. Under this clause (c), 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, by contract or otherwise. (ii) The limited liability company operating agreement of the Seller shall at all times provide that that: (iA) the Seller’s Manager (as defined in its limited liability company agreement) Board of Directors 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 Director shall approve the taking of such action in writing before the taking of such action; , and (iiB) such provision and each other provision requiring the consent of the Independent Director cannot be amended without the prior written consent of the Independent Manager.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, VistraHoldings, the Servicer or FleetCor, any Originator, any Sub-Originator or any of their respective other Affiliates.;
(e) The Seller shall conduct its affairs strictly in accordance with its organizational documents and observe all necessary, appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and board of directors’ meetings appropriate to authorize all limited liability company action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(f) Any employee, consultant or agent of the Seller will be compensated from the Seller’s funds for services provided to the Seller, and to the extent that Seller shares the same officers or other employees as Holdings, FleetCor or any Originator, any Sub-Originator (or any other Affiliate thereof), the salaries and expenses relating 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 such common officers and employees. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(fg) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra Holdings, FleetCor, any Originator or the Servicer any Sub-Originator (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; providedit being understood that FleetCor, that the Servicer may in its capacity as Servicer, shall 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.;
(gh) The Seller’s operating expenses will not be paid by Vistra, the ServicerFleetCor, any Originator, any Sub-Originator or any other Affiliate thereof.;
(hi) The Seller will have its own separate stationery;
(j) The Seller’s books and records will be maintained separately from those of VistraFleetCor, each Originator, each Sub-Originator and any other Affiliate thereof and in a manner such that it will not be difficult or costly to segregate, ascertain or otherwise identify the Servicer or assets and liabilities of Seller;
(k) All financial statements of Holdings, FleetCor, 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 Sub-Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall contain detailed notes clearly stating to include Seller will disclose that (i) the Seller’s sole business consists of the purchase or acceptance through capital contributions of the Receivables and Related Rights from the Originators and the subsequent retransfer of or granting of a security interest in such Affiliates are Receivables and Related Rights to certain purchasers party to this Agreement, (ii) the Seller is a separate legal entities and entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the Seller’s assets prior to any assets or value in the Seller becoming available to the Seller’s equity holders and credit (iii) the assets of the Seller are not available to satisfy pay creditors of FleetCor, the debts and obligations of such Affiliates Originators, the Sub-Originators or any other Person and (ii) Affiliates of FleetCor, the Seller’s assets shall be listed on Originators or the Seller’s own separate balance sheet.Sub-Originators;
(jl) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of VistraHoldings, FleetCor, the Servicer Originators, the Sub-Originators or any Originator or any of their respective other Affiliates.Affiliates thereof;
(km) The Seller will strictly observe corporate formalities in its dealings with VistraHoldings, FleetCor, the Servicer Originators, the Sub-Originators or any Originator or any of their respective other AffiliatesAffiliates thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of VistraHoldings, FleetCor, the Servicer Originators, the Sub-Originators or any Originator or any of their respective other Affiliates thereof except as permitted by this AgreementAgreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which VistraHoldings, the Servicer FleetCor or any Originator or any of their respective Affiliate thereof (other Affiliates than FleetCor in its capacity as the Servicer) has independent access.. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of Holdings, FleetCor, the Originators, the Sub-Originators or any Subsidiaries or other Affiliates thereof. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(ln) The Seller will maintain arm’s-length relationships with each of VistraHoldings, FleetCor, the Servicer or any Originator Originators, the Sub-Originators (and any of their other AffiliatesAffiliates thereof). 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, Seller on the one hand, nor the Servicer FleetCor or any Originator, any Sub-Originator, on the otherother hand, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other. The Seller Seller, Holdings, FleetCor, the Originators and the Servicer Sub-Originators will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single 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 guaranteehave a separate area from Holdings, FleetCor, each Originator and each Sub-Originator for its business (which may be located at the same address as such entities) and to the extent that any other such entity have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall not otherwise be liable, with respect to any obligation bear its fair share of any of its Affiliates.such expenses; and
(p) The To the extent not already covered in paragraphs (a) through (o) above, Seller shall be, at all times, adequately capitalized to engage comply and/or act in accordance with the transactions contemplated in its limited liability company agreement.
(q) provisions of Section 6.4 of the Sale Agreement. 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 following shall be a “Termination Event”:
(a) (i) the Seller, FleetCor, any Originator, any Sub-Originator or the Servicer shall fail to perform or observe any term, covenant or agreement under this Agreement or any other Transaction Document and, except as otherwise provided herein, such failure shall continue for 30 days after the earlier of any such Person’s knowledge or notice thereof or (ii) the Seller or the Servicer shall fail to make when due any payment or deposit to be made by it under this Agreement or any other Transaction Document and such failure shall remain unremedied for 3 Business Days;
(b) FleetCor (or any Affiliate thereof) shall fail to transfer to any successor Servicer, when required, any rights pursuant to this Agreement that FleetCor (or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the Seller, the Servicer, any Originator, any Sub-Originator (or any of their respective officers) under or in connection with this Agreement or any other Transaction Document, or any information or report delivered by the Seller, the Servicer, any Originator or any Sub-Originator pursuant to this Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered;
(d) the Seller or the Servicer shall fail to deliver (i) any Monthly Information Package when due pursuant to this Agreement, and such failure shall remain unremedied for five Business Days after the earlier of such Person’s knowledge or notice thereof or (ii) any Weekly Information Package when due pursuant to this Agreement, and such failure shall remain unremedied for two Business Days after the earlier of such Person’s knowledge or notice thereof;
(e) this Agreement or any Purchase or Reinvestment pursuant to this Agreement shall for any reason: (i) cease to create, or the Purchased Interest shall for any reason cease to be, a valid and enforceable first priority perfected undivided percentage ownership or security interest to the extent of the Purchased Interest in each Pool Receivable, the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, or (ii) cease to create with respect to the Pool Assets, or the interest of the Administrator (for the benefit of the Purchasers) with respect to such Pool Assets shall cease to be, a valid and enforceable first priority perfected security interest, free and clear of any Adverse Claim;
(f) the Seller, FleetCor, the Servicer, any Originator or any Sub-Originator shall generally not pay its debts as such debts become due, shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller, FleetCor, the Servicer, any Originator or any Sub-Originator seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to substantive consolidation issuesbankruptcy, and insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the certificates accompanying case of any such opinionproceeding instituted against it (but not instituted by it), either such proceeding shall remain true undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Seller, FleetCor, the Servicer, any Originator or any Sub-Originator shall take any corporate action to authorize any of the actions set forth above in this paragraph;
(g) (i) the (A) Default Ratio shall exceed 2.50%, (B) Delinquency Ratio shall exceed 5.00%, (ii) the average for three consecutive calendar months of: (A) the Default Ratio shall exceed 2.00%, (B) the Delinquency Ratio shall exceed 4.00%, or (C) the Dilution Ratio shall exceed 2.00%, or (iii) Days’ Sales Outstanding exceeds 25 days;
(h) a Change in Control shall occur;
(i) the Purchased Interest shall exceed 100% for two (2) Business Days;
(j) (i) the Seller, FleetCor or any of its Subsidiaries shall fail to pay any principal of or premium or interest on any of its Debt that is outstanding under the Credit Facility or that is outstanding in a principal amount of at least $10,000,000 (or, solely with respect to the Seller, $15,325) in the aggregate when the same becomes due and correct in all material respects at all times.payable (whether by scheduled matu
Appears in 1 contract
Sources: Receivables Purchase Agreement (Fleetcor Technologies Inc)
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 At 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 Datetimes:
(a) The Seller will be a limited liability company whose primary activities are restricted in maintain its limited liability company agreement to (i) purchasing own deposit account or otherwise acquiring from any Originatoraccounts, 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 separate from those of Vistraany Affiliate, 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 Sellercommercial banking institutions and, except as otherwise provided herein or in the Operative Documents, ensure that its funds will not be diverted to any other Transaction Documents; Person or for other than its own corporate uses, nor will such funds be commingled with the funds of any Affiliate (other than funds deposited to the Clearing Account or the Lock-Box, which funds may be commingled for a period not exceeding two (2) Business Days in the aggregate);
(b) to the extent that it shares the same officers or other employees as any of its Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees;
(c) to the extent that it jointly contracts with any of its Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that it contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods or services are provided, and each such entity shall bear its fair share of such costs;
(d) enter into all material transactions with its Affiliates, whether currently existing or hereafter entered into, only on an arm's length basis, it being understood and agreed that an Affiliate the transactions contemplated in the Operative Documents meet the requirements of this paragraph (d);
(e) maintain office space that is physically segregated from the office space of any of its Affiliates (other than ▇▇▇▇▇) and, to the extent that it and any of its 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;
(f) conduct its affairs strictly in accordance with its certificate of incorporation and observe all necessary, appropriate and customary corporate formalities, including, but not limited to, separate stationery, holding all regular and special stockholders' and directors' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records, financial records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(g) act solely in its own name, hold itself out as a separate entity, pay its own liabilities out of its own funds, and not assume or guarantee any 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 liabilities of any of its Affiliates.; and
(ph) The Seller shall take, or refrain from taking, as the case may 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 that are necessary on its part to ensure that the facts and assumptions set forth be taken or not to be taken in the opinion issued by Sidley Austin LLP, as counsel for the Seller, in connection order to comply 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 timesSection 5.16.
Appears in 1 contract
Separate Existence. Each of the Seller and the Servicer Amphenol Corporation hereby acknowledges that the Purchasers, the Purchaser Agents Administrative Agent and the Administrator Liquidity Providers 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 Amphenol Corporation and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer Amphenol Corporation shall take all steps specifically required by this the Agreement or reasonably required by the Administrative Agent 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, Amphenol Corporation and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsAmphenol Corporation, 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 Amphenol Corporation shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited liability company purpose corporation whose primary activities are restricted in its limited liability company agreement to certificate of incorporation to: (i) purchasing or otherwise acquiring from any Originatorthe Originators, 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 member of the Seller’s Board of Directors (the “Independent ManagerDirector”) 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 ownerstockholder, officer, director, employee, affiliate, associate or supplier of Vistra, the Servicer Amphenol Corporation 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 securitiesAffiliates. The limited liability company agreement certificate of incorporation of the Seller shall at all times provide that that: (i) the Seller’s Manager (as defined in its limited liability company agreement) Board of Directors 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 Director 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.Director;
(d) The Independent Manager Directors shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer Amphenol Corporation or any Originator or any of their respective other Affiliates.Affiliate thereof;
(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, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(f) The Seller will contract with the Servicer, 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 DocumentsAgreement. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer Amphenol Corporation (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, it being understood that the Servicer may Amphenol Corporation shall 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 Amphenol Corporation or any other Affiliate thereof.;
(h) All of the Seller’s business correspondence and other communications shall be conducted in the Seller’s own name and on its own separate stationery;
(i) The Seller’s books and records will be maintained separately from those of Vistra, the Servicer or Amphenol Corporation and any Originator or any of their respective other Affiliates.Affiliate thereof;
(ij) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer Amphenol Corporation or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that that: (i) such Affiliates are separate legal entities and the Seller’s assets and credit are not available to satisfy the debts and obligations a special purpose corporation exists as a Subsidiary of such Affiliates or any other Person Amphenol Corporation, and (ii) the Seller’s Originators have sold receivables and other related assets shall be listed on the Seller’s own separate balance sheet.to such special purpose Subsidiary that, in turn, has sold undivided interests therein to certain financial institutions and other entities;
(jk) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer Amphenol Corporation or any Originator or any of their respective other Affiliates.Affiliate thereof;
(kl) The Seller will strictly observe corporate formalities in its dealings with Vistra, the Servicer Amphenol Corporation or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer Amphenol Corporation or any Originator or any of their respective other Affiliates Affiliate thereof except as permitted by this Agreementthe Agreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer Amphenol Corporation or any Originator or any of their respective Affiliate thereof (other Affiliates than Amphenol Corporation in its capacity as the Servicer) has independent access.. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of Amphenol Corporation or any Subsidiary or other Affiliate of Amphenol Corporation. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate; and
(lm) The Seller will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator Amphenol Corporation (and any of their other AffiliatesAffiliate thereof). 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, Seller nor the Servicer or any Originator, on the other, Amphenol Corporation 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 Amphenol Corporation will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity.
(mn) None of Vistra, the Servicer or other Originator Amphenol Corporation shall not 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.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Amphenol Corp /De/)
Separate Existence. Each The Seller shall at all times:
(i) to the extent that it shares the same officers or other employees as the Purchaser, 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;
(ii) to the extent that it jointly contracts with the Purchaser 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 Seller contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of the Purchaser, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods or services are provided, and each such entity shall bear its fair share of such costs;
(iii) enter into all transactions between the Seller and the Servicer hereby acknowledges that the PurchasersPurchaser, 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 whether currently existing or hereafter entered into, only on an arm’s-length basis;
(iv) maintain office space separate from the Serviceroffice space of the Purchaser and, each Originator, Vistra and their respective other Affiliates. Therefore, from and after to the date hereof, each of extent that the Seller and the Servicer Purchaser have offices in the same location, there shall take all steps specifically required by this Agreement to continue the Seller’s identity as be a separate legal entity fair and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those appropriate allocation of Vistra, the Servicer, each Originatoroverhead costs among them, and any other Personeach such entity shall bear its fair share of such expenses;
(v) issue separate financial statements prepared not less frequently than annually and prepared in accordance with GAAP;
(vi) conduct its affairs strictly in accordance with its organizational documents and observe all necessary, appropriate and customary corporate formalities, including, but not limited to, holding all regular and special stockholders’, members’, managers’ and directors’ meetings (as applicable) appropriate to authorize all corporate action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and is maintaining accurate and separate books, records and accounts, including, but not a division of Vistralimited to, the Servicer, the Originators, its payroll and intercompany transaction accounts;
(vii) not assume or their respective other Affiliates or guarantee any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, each liabilities of the Seller and Purchaser;
(viii) take, or refrain from taking, as the Servicer shall take such case may be, all other actions as shall that are necessary to be required taken or not to be taken in order to ensure each of the following until the Final Termination Date:comply with this Section 8.6(m); and
(aix) 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 comply with all material assumptions 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 fact set forth in the opinion issued with respect to certain bankruptcy matters delivered by Sidley Austin LLP▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP on the date hereof, as counsel for relating to the Seller, in connection its obligations hereunder and under the other Transaction Documents to which it is a party and the conduct of its business 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 timesPurchaser or any other Person.
Appears in 1 contract
Separate Existence. Each The Seller shall at all times be operated in such a manner that the separate corporate existence of the Seller, on the one hand, and any member of the Parent Group, on the other hand, will not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Group and, without limiting the generality of the foregoing:
(i) the Seller shall at all times be a limited purpose corporation whose activities are restricted in its certificate or articles of incorporation to those activities expressly permitted hereunder and under the other Related Documents and the Seller does not presently engage and will not engage, in any activity other than those activities expressly permitted hereunder and under the other Related Documents, nor will the Seller enter into any agreement other than this Agreement, the other Related Documents to which it is a party and, with the prior written consent of the Purchasers and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) no member of the Parent Group or any individual at the time he or she is acting as an officer of any such member will be involved in the day-to-day management of the Seller;
(iii) other than the purchase and acceptance through capital contributions of Transferred Receivables, the repayment of Subordinated Loans, the payment of dividends and the return of capital to Holding and the payment of Servicing Fees to the Servicer under this Agreement, the Seller will not engage in any intercorporate transactions with any member of the Parent Group;
(iv) the Seller will maintain corporate records and books of account separate from that of each member of the Parent Group, hold regular corporate meetings and otherwise observe corporate formalities and will have a business office separate from that of each member of the Parent Group;
(v) the financial statements and books and records of the Seller and the Servicer hereby acknowledges that members of the Purchasers, Parent Group do and will reflect the Purchaser Agents and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon separate corporate existence of the Seller’s identity as a legal entity separate ;
(A) the Seller will maintain its assets separately from the Servicerassets of each member of the Parent Group (including through the maintenance of separate bank accounts and except for any Records to the extent necessary to assist the Servicer in connection with the servicing of the Transferred Receivables), each Originator(B) the Seller's funds (including all money, Vistra checks and their respective other Affiliates. Thereforecash proceeds) and assets, from and after records relating thereto, will not be commingled with those of any member of the date hereof, each Parent Group and (C) the separate creditors of the Seller and the Servicer shall take all steps specifically required by this Agreement will be entitled to continue be satisfied out of the Seller’s identity as a separate legal entity and 's assets prior to make it apparent to third Persons that any value in the Seller is an entity with assets becoming available to the Seller's Stockholders;
(vii) except as otherwise expressly permitted hereunder, under the other Related Documents and liabilities distinct from those of Vistraunder the Seller's organizational documents, 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 no member of the foregoing Parent Group (A) will pay the Seller's expenses, (B) guarantee the Seller's obligations, or (C) advance funds to the Seller for the payment of expenses or otherwise;
(viii) all business correspondence and in addition to and consistent with the other covenants set forth herein, each communications of the Seller will be conducted in the Seller's own name, on its own stationery and through a separately-listed telephone number;
(ix) the Servicer shall take such actions Seller will not act as shall be required in order to ensure each agent for any member of the following until Parent Group, but instead will present itself to the Final Termination Date:public as a corporation separate from each such member and independently engaged in the business of purchasing and financing Transferred Receivables;
(ax) The the Seller will be a limited liability company whose primary activities are restricted in its limited liability company agreement to maintain at least two (i2) purchasing or otherwise acquiring from any Originatorindependent directors, owning, holding, granting security interests or selling interests in Pool Assets; (ii) entering into agreements for the selling and servicing one 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) whom has at least three (3) years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. The limited liability company agreement , and each of whom (A) is not a Stockholder, director, officer, employee or associate, or any relative of the Seller shall at foregoing, of any member of the Parent Group, all times provide that as provided in its certificate or articles of incorporation, (iB) has prior experience as an independent director for a corporation whose charter documents required the unanimous consent of all independent directors thereof before such corporation 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 (C) is otherwise acceptable to the Purchasers and the Administrative Agent, and one of whom is employed by a nationally-recognized firm, satisfactory to the Purchasers and the Administrative Agent, which specializes in providing independent directors or managers for special purpose corporations or companies; and
(xi) the Seller’s Manager (as defined in its limited liability company agreement) shall not approve, bylaws 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 certificate or articles 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 incorporation of the Seller will require (A) the affirmative vote of each independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be compensated from filed by 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.
(fB) 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 maintain (or any other Affiliate thereof1) 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 correct 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 complete 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 account and (ii2) 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 minutes of the Seller are not commingled with those of Vistra, the Servicer or any Originator or any of their respective meetings and 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 proceedings of its AffiliatesStockholders and board of directors.
(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.
Appears in 1 contract
Sources: Receivables Purchase and Servicing Agreement (Advancepcs)
Separate Existence. Each of the Seller and the Servicer Weirton hereby acknowledges that the Purchasers, the Purchaser Agents Banks and the Administrator Facility Agent are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from the Servicer, each Originator, Vistra Weirton and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer Weirton shall take all steps specifically required by this the Agreement or reasonably required by the Facility Agent to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of Vistra, the Servicer, each Originator, Weirton and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsWeirton, 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 Weirton shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited liability company purpose corporation whose primary activities are restricted in its limited liability company agreement to certificate of incorporation to: (i) purchasing or otherwise acquiring from any the 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 member of the Seller's Board of Directors (the “"Independent Manager”Director") 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 ownerstockholder, officer, director, employee, affiliate, associate or supplier of Vistra, the Servicer Weirton 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 securitiesAffiliates. The limited liability company agreement certificate of incorporation of the Seller shall at all times provide that that: (i) the Seller’s Manager (as defined in its limited liability company agreement) 's Board of Directors 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 Director 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.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer Weirton or any Originator or any of their respective other Affiliates.Affiliate thereof;
(e) Any employee, consultant or agent of the Seller will be compensated from the Seller’s 's funds for services provided to the Seller. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other 74 76 agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller's funds;
(f) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer Weirton (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 '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, it being understood that the Servicer may Weirton shall 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 's operating expenses will not be paid by Vistra, the Servicer, any Originator Weirton or any other Affiliate thereof.;
(h) The Seller will have its own separate stationery;
(i) The Seller’s 's books and records will be maintained separately from those of Vistra, the Servicer or Weirton and any Originator or any of their respective other Affiliates.Affiliate thereof;
(ij) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer Weirton or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that that: (i) such Affiliates are separate legal entities and the Seller’s assets and credit are not available to satisfy the debts and obligations a special purpose corporation exists as a Subsidiary of such Affiliates or any other Person Weirton, and (ii) the Seller’s Originator has sold receivables and other related assets shall be listed on the Seller’s own separate balance sheet.to such special purpose Subsidiary that, in turn, has sold undivided interests therein to certain financial institutions and other entities;
(jk) The Seller’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer Weirton or any Originator or any of their respective other Affiliates.Affiliate thereof;
(kl) The Seller will strictly observe corporate formalities in its dealings with Vistra, the Servicer Weirton or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer Weirton or any Originator or any of their respective other Affiliates Affiliate thereof except as permitted by this Agreementthe Agreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer Weirton or any Originator or any of their respective Affiliate thereof (other Affiliates than Weirton in its capacity as the Servicer) 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 foregoingis not named, and they will has not operate entered into any agreement to be named, directly or purport to operate indirectly, as an integrated economic unit with respect to each other a direct or in their dealing with contingent beneficiary or loss payee on 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, insurance policy with respect to any obligation loss relating to the property of Weirton or any Subsidiary or other Affiliate of Weirton. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount 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 portion 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.the
Appears in 1 contract
Sources: Receivables Participation Agreement (Weirton Steel Corp)
Separate Existence. Each (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the Seller entity with which such persons are concerned, and shall use its best efforts to avoid the Servicer hereby acknowledges appearance that it is conducting business on behalf of any Affiliate thereof or that the Purchasers, assets of the Purchaser Agents Borrower are available to pay the creditors of any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of any other Person.
(c) It shall pay its own operating expenses and liabilities from its own funds.
(d) It shall ensure that the Administrator are entering into annual financial statements of the Equityholder shall disclose the effects of the transactions contemplated by this Agreement hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(i) It shall not amend, supplement or otherwise modify the Special Purpose Provisions contained in its organizational documents (as defined therein), except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned).
(j) It shall at all times hold itself out to the public and all other Transaction Documents in reliance upon the Seller’s identity Persons as a legal entity separate from the Servicer, each Originator, Vistra its member and their respective from any other Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer Person.
(k) It shall take all steps specifically required by this Agreement to continue the Seller’s identity as a file its own tax returns 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, except to the extent that it is treated as a “disregarded entity” for tax purposes and is not a division required to file tax returns under Applicable Law, and shall pay any taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, showing its assets and liabilities separate and apart from those of Vistra, the Servicer, the Originators, any other Person and not have its or their respective other Affiliates or assets listed on any financial statement of 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 its assets may pay all (or any portion of) the expenses relating to the preparation, negotiation, execution and delivery be included in a consolidated financial statement 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 its 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.
so long as (i) The Seller’s assets appropriate notation 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 made on such consolidated financial statements shall contain detailed notes clearly stating (if any) to indicate its separateness from such Affiliate and to indicate that (i) such Affiliates are separate legal entities and the Seller’s its assets and credit are not available to satisfy the debts and other obligations of such Affiliates Affiliate or any other Person and (ii) the Seller’s such assets shall also be listed on the Seller’s its own separate balance sheet.
(jn) The Seller’s assets will be maintained It shall not, except for capital contributions or capital distributions permitted under the terms and conditions of its organizational documents and properly reflected on its books and records, enter into any transaction with an Affiliate except on commercially reasonable terms similar to those available to unaffiliated parties in a manner that facilitates their identification and segregation from those of Vistra, the Servicer or any Originator or any of their respective other Affiliatesan arm’s- length transaction.
(ko) The Seller will strictly observe corporate formalities It shall maintain a sufficient number of employees (which number may be zero) in light of its dealings with Vistracontemplated business purpose and pay the salaries of its own employees, the Servicer or any Originator or any of their respective other Affiliatesif any, 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 accessonly from its own funds.
(lp) The Seller will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator It shall use separate invoices bearing its own name.
(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 q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not require its equityholders to make additional capital contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with respect the Transaction Documents.
(t) It shall 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 it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the foregoingTransaction Documents.
(v) It shall not buy or hold evidence of indebtedness issued by any other Person, and they will except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits, for the avoidance of doubt, the formation of REO Asset Owners), it shall not operate form, acquire or purport to operate as an integrated economic unit with respect to each other hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in their dealing with any other entity.
(mx) None of Vistra, It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Servicer or other Originator shall pay the salaries of Seller’s employees, if anyTransaction Documents.
(ny) No Affiliate of It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by 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.
(oz) The Seller It shall not guarantee, allocate fairly and shall not otherwise be liable, reasonably any overhead expenses that are shared with respect to any obligation of any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(paa) Neither the Borrower nor the Equityholder shall take any action contrary to the “Facts and Assumptions” or “Further Assumptions” sections in the opinion or opinions of Dechert LLP, dated the Existing Effective Date, relating to certain nonconsolidation and true sale matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior written consent of at least one Independent Manager (or the unanimous written consent of all Independent Managers, if more than one). The Seller organizational documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Manager; (b) the Borrower shall not, without the prior written consent of at least one Independent Manager (or the unanimous written consent of all timesIndependent Managers, adequately capitalized if more than one), on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to engage in become insolvent, and when voting with respect to such matters, the transactions contemplated in its limited liability company agreement.
(qIndependent Manager(s) Each shall consider only the interests of the Seller Borrower, including its creditors; and (c) no Independent Manager of the Servicer will take Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Manager, together with a statement as to the reasons for such other actions as are necessary on its part to ensure removal, and (ii) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the facts and assumptions requirements set forth in the opinion issued by Sidley Austin LLP, as counsel organizational documents of the Borrower for the Seller, in connection with this Agreement relating to substantive consolidation issues, an Independent Manager. No resignation or removal of an Independent Manager shall be effective until a successor Independent Manager is appointed and in the certificates accompanying such opinion, remain true and correct in all material respects at all timeshas accepted his or her appointment. No Independent Manager may be removed other than for Cause.
Appears in 1 contract
Separate Existence. Each of the Seller and the Servicer UGI hereby acknowledges that the Purchasers, the Purchaser Agents Issuer 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 UGI and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer UGI shall take all steps specifically required by this the Agreement or reasonably required by the Administrator 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, UGI and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsUGI, 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 UGI shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited liability company purpose corporation whose primary activities are restricted in its limited liability company agreement to certificate of incorporation to: (i) purchasing or otherwise acquiring from any Originatorthe Originator (or its Affiliates), owning, holding, granting security interests or selling interests in Pool Assets; Assets (or other receivables originated by the Originator or its Affiliates, and certain related assets), (ii) entering into agreements for the selling and servicing of the Receivables Pool; Pool (or other receivables pools originated by the Originator or its Affiliates), 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 member of the Seller’s Board of Directors (the “Independent ManagerDirector”) 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 ownerstockholder, officer, director, employee, affiliate, associate or supplier of VistraUGI, 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 securitiesAffiliates. The limited liability company agreement certificate of incorporation of the Seller shall at all times provide that that: (i) the Seller’s Manager (as defined in its limited liability company agreement) Board of Directors 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 Director 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.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer UGI or any Originator or any of their respective other Affiliates.Affiliate thereof;
(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, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool.
(f) The Seller , which servicer will contract with the Servicer, to perform be fully compensated 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 its services 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 payment of 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.;
Appears in 1 contract
Separate Existence. Each of the Seller and the Servicer Peabody hereby acknowledges that the Purchasers, the Purchaser Agents Issuer 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 Peabody and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer Peabody shall take all steps specifically required by this the Agreement or reasonably required by the Administrator 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, Peabody and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsPeabody, 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 Peabody shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited purpose limited liability company whose primary activities are restricted in its limited liability company agreement to certificate of formation to: (i) purchasing or otherwise acquiring from any Originatorthe Originators or Peabody (or their Affiliates), owning, holding, granting security interests or selling interests in Pool Assets; Assets (or other receivables originated by the Originators or their Affiliates, and certain related assets), (ii) entering into agreements for the selling and servicing of the Receivables Pool; Pool (or other receivables pools originated by the Originators or their Affiliates), and (iii) conducting such other activities as it deems are necessary or appropriate to carry out its primary such activities.;
(b) The Seller shall not engage in any business or activity, or activity except as set forth in this Agreement nor incur any indebtedness or liability, other than as expressly permitted by the Transaction Documents.;
(c) Not less than one independent manager of the Seller’s Directors (the “Independent ManagerDirector”) shall be an individual a natural person who (iA) is not, and has not at any time during for the five-year period prior to his or her appointment as Independent Manager Director has not been, a direct, indirect and during the continuation of his or beneficial owner, officerher service as Independent Director is not: (i) an employee, director, employeestockholder, affiliatemember, associate manager, partner or supplier officer of Vistrathe Seller, the Servicer Peabody or any of its or their respective Affiliates (other than his or her service as an independent manager or in a similar capacity Independent Director of any such Personthe Seller); (ii) a customer or supplier of the Seller, Peabody or any of their respective Affiliates (other than his or her service as an Independent Director of Seller); or (iii) any member of the immediate family of a person described in clause (i) or (ii) above, and (B) has, (i) prior experience as an Independent Director for a corporation or 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 (ii) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. The limited liability company agreement Such Independent Director of the Seller shall at all times have been appointed as such in strict compliance with the Seller’s LLC Agreement. The Seller’s LLC Agreement shall provide that (i) the Seller’s Manager (as defined in its limited liability company agreement) Board of Directors shall not approve, or take any other action to cause the filing of, or join in any filing of, a voluntary bankruptcy petition or insolvency petition, dissolution, liquidation, consolidation, merger, sale of all or substantially all of its assets, assignment for the benefit of creditors, admit in writing its inability to pay its debts generally as they become due, or to engage in any other business or activity with respect to the Seller unless (x) there is at least one Independent Director then serving as a director of the Manager Seller and appointed pursuant to and in strict compliance with the Seller’s LLC Agreement, and (y) all such Independent Manager Directors of the Seller shall approve have approved the taking of such action in writing before prior to the taking of such action; action and (ii) such provision cannot be amended without the prior written consent of the Independent Manager.Director and the Administrator;
(d) Upon the occurrence of any event that causes the Member to cease to be a member of the Seller (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Seller and the admission of the transferee pursuant to Sections 21 and 23 of the LLC Agreement, or (ii) the resignation of the Member and the admission of an additional member of the Seller pursuant to Sections 22 and 23 of the LLC Agreement), each person acting as an Independent Director pursuant to Section 10 of the LLC Agreement shall, without any action of any Person and simultaneously with the Member ceasing to be a member of the Seller, automatically be admitted to the Seller as a Special Member and shall continue the Seller without dissolution. No Special Member may resign from the Seller or transfer its rights as a Special Member unless (i) a successor Special Member has been admitted to the Seller as Special Member by executing a counterpart to the LLC Agreement, and (ii) such successor has also accepted its appointment as Independent Director pursuant to Section 10 of the LLC Agreement; provided, however, the Special Members shall automatically cease to be members of the Seller upon the admission to the Seller of a substitute Member.
(e) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer Peabody or any Originator or any of their respective other Affiliates.Affiliate thereof;
(ef) 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, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(fg) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer Peabody (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, it being understood that the Servicer may Peabody shall 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.;
(gh) The Seller’s operating expenses will not be paid by Vistra, the Servicer, any Originator Seller and not by Peabody or any other Affiliate thereof.;
(hi) All of the Seller’s business correspondence and other communications shall be conducted in the Seller’s own name and on its own separate stationery;
(j) The Seller’s books and records will be maintained separately from those of Vistra, the Servicer or Peabody and any Originator or other Affiliate thereof and any of their respective other Affiliates.Person;
(ik) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer Peabody or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that that: (i) such Affiliates are separate legal entities and the Seller’s assets and credit are not available to satisfy the debts and obligations a special purpose limited liability company exists as a Subsidiary of such Affiliates or any other Person Peabody, and (ii) the Seller’s Originators have sold receivables and other related assets shall be listed on to the Seller’s own separate balance sheet.Contributor, which has contributed such receivables and other related assets to such special purpose Subsidiary that, in turn, has sold such receivables and other related assets to certain financial institutions and other entities;
(jl) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer Peabody or any Originator or Affiliate thereof and any of their respective other Affiliates.Person;
(km) The Seller will strictly observe corporate organizational formalities in its dealings with Vistra, the Servicer Peabody or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer Peabody or any Originator or any of their respective other Affiliates Affiliate thereof except as permitted by this Agreementthe Agreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer Peabody or any Originator Affiliate thereof or any of their respective other Affiliates Person has independent access., and the Seller shall use separate invoices and checks from any other Person. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of Peabody or any Subsidiary or other Affiliate of Peabody (other than the Seller) The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(ln) The Seller will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator Peabody (and any of their other AffiliatesAffiliate thereof). 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, Seller nor the Servicer or any Originator, on the other, Peabody 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 Peabody will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity.;
(mo) None of Vistra, the Servicer or other Originator Peabody shall not 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 does not and will not hold itself responsible for the obligations of any other Person, and shall be, at all times, adequately capitalized to engage in not guarantee or become liable for the transactions contemplated in its limited liability company agreement.debts of any other Person;
(q) The Seller will conduct its business in its own name and shall hold itself out as a separate entity from any other Person;
(r) The Seller shall maintain a sufficient number of employees and adequate capital in light of its contemplated business activities;
(s) The Seller shall not acquire the obligations or securities of any of its members; and
(t) The Seller shall not pledge its assets for the benefit of any other Person or make any loans or advances to any other Person, except pursuant to the Transaction Documents. 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 following shall be a “Termination Event”:
(i) the Seller, Peabody, any Originator or the Servicer (if Peabody or any of its Affiliates) shall fail to perform or observe any term, covenant or agreement under the Agreement (other than those terms, covenants or agreements contained in Exhibit IV, Sections 1(a), 1(l) (except clause (iv) thereof), 2(a), and 2(l) (except clause (viii) thereof)) or any other Transaction Document and, except as otherwise provided herein, such failure shall continue for five consecutive Business Days after knowledge or notice thereof, (ii) the Seller or the Servicer shall fail to make when due any payment or deposit to be made by it under the Agreement and such failure shall continue unremedied for one Business Day, (iii) Peabody shall resign as Servicer, and no successor Servicer reasonably satisfactory, to the Administrator shall have been appointed, or (iv) the Seller, Peabody, any Originator or the Servicer (if Peabody or any of its Affiliates) shall fail to perform or observe any term covenant or agreement in any of Exhibit IV, Sections 1(a), 1(l) (except clause (iv) thereof), 2(a), or 2(l) (except clause (viii) thereof) and, except as otherwise provided herein, such failure shall continue for thirty days after knowledge or notice thereof;
(b) Peabody (or any Affiliate thereof) shall fail to transfer to any successor Servicer when required any rights pursuant to the Agreement that Peabody (or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the Seller, Peabody or any Originator (or any of their respective officers) under or in connection with this the Agreement or any other Transaction Document, or any information or report delivered by the Seller, Peabody or any Originator or the Servicer pursuant to the Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered, and shall remain incorrect or untrue for 10 Business Days after notice to the Seller or the Servicer of such inaccuracy;
(d) the Seller or the Servicer shall fail to deliver the Information Package pursuant to the Agreement, and such failure shall remain unremedied for two Business Days;
(e) the Agreement or any Investment or Reinvestment pursuant to the Agreement shall for any reason: (i) cease to create a valid and enforceable perfected ownership or security interest in each Pool Receivable, the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, or (ii) cease to create with respect to the Pool Assets, or the interest of the Administrator with respect to such Pool Assets shall cease to be, a valid and enforceable first priority perfected ownership or security interest, free and clear of any Adverse Claim;
(f) the Seller, Peabody or any Originator shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller, Peabody or any Originator seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to substantive consolidation issuesbankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Seller, Peabody or any Originator shall take any corporate or organizational action to authorize any of the actions set forth above in this paragraph;
(g) (i) the (A) Default Ratio shall exceed 2.25% or (B) the Delinquency Ratio shall exceed 4.50% or (ii) the average for three consecutive calendar months of: (A) the Default Ratio shall exceed 1.75%, (B) the Delinquency Ratio shall exceed 3.50% or (C) the Dilution Ratio shall exceed 2.50%;
(h) a Change in Control shall occur;
(i) at any time the Purchased Assets Coverage Percentage exceeds 100%, and such circumstance shall not have been cured within two Business Days;
(i) the occurrence of any Event of Default under and as defined in the certificates accompanying Credit Agreement, provided that if the Credit Agreement is terminated but not replaced, the covenants in effect in the Credit Agreement immediately prior to termination of the Credit Agreement shall be deemed to be effective for the purposes of the Agreement; (ii) any other event shall occur or condition shall exist under the Credit Agreement and shall continue after the applicable grace period, if any, specified in such opinionCredit Agreement if, remain true and correct in all material respects at all times.either case: (a) the effect of such non-payment, event or condition is to give the applicable debtholders t
Appears in 1 contract
Sources: Receivables Purchase Agreement (Peabody Energy Corp)
Separate Existence. Each From the date of the Seller and the Servicer hereby acknowledges that the Purchasersits formation, 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 Transferor has at all times:
(i) maintained its own deposit account or accounts, 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 Vistraany Affiliate, with commercial banking institutions and ensured that the funds of the Transferor were not be diverted to any other Person or for other than limited liability company uses of the Transferor, nor were such funds commingled with the funds of the Originator or any subsidiary or Affiliate of the Originator except to the extent permitted by the Transactions Documents;
(ii) to the extent that it shared the same officers or other employees as any of its members or Affiliates, the Servicer, each Originatorsalaries of and the expenses related to providing benefits to such officers and other employees were fairly allocated among such entities, and each such entity bore its fair share of the salary and benefit costs associated with all such common officers and employees;
(iii) to the extent that it jointly contracted 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 were allocated fairly among such entities, and each such entity bore its fair share of such costs. To the extent that the Transferor contracted or did business with vendors or service providers where the goods and services provided were partially for the benefit of any other Person, the costs incurred in so doing were fairly allocated to or among such entities for whose benefit the goods or services are provided, and is not a division each such entity bore its fair share of Vistrasuch costs;
(iv) entered into all material transactions between the Transferor and any of its Affiliates only on an arm’s length basis, it being understood and agreed that the Servicer, transactions contemplated in the Originators, its or their respective other Affiliates or any other Person. Without limiting Transaction Documents meet the generality requirements of this clause (iv);
(v) either maintained office space separate from the office space of the foregoing Originator and its Affiliates or, to the extent that the Transferor and any of its members or Affiliates had offices in addition to the same location, there was a fair and consistent with the other covenants set forth hereinappropriate allocation of overhead costs among them, and each such entity bore its fair share 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:expenses;
(avi) The Seller will be a issued separate financial statements prepared not less frequently than annually and prepared in accordance with GAAP;
(vii) conducted its affairs strictly in accordance with its Limited Liability Company Agreement and observed all necessary, appropriate and customary limited liability company whose primary activities are restricted in its formalities, including, but not limited to, holding all regular and special directors’ meetings appropriate to authorize all limited liability company agreement action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(iviii) purchasing or otherwise acquiring from neither assumed nor guaranteed 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 liabilities of the Originator or appropriate to carry out its primary activities.any Affiliate thereof;
(bix) 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 maintained at least one independent manager (the “Independent Manager”) shall be an individual director who (iA) is notwas not a stockholder, 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 ownerdirector, officer, directoremployee or associate, employeeor any relative of the foregoing, affiliate, associate or supplier of Vistra, the Servicer Originator or any of its or their Affiliates (other than his or her service the Transferor), and (B) had (1) prior experience as an independent manager director for an entity whose organizational documents required the unanimous consent of all independent directors thereof before such entity could consent to the institution of bankruptcy or in insolvency proceedings against it or could file a similar capacity of petition seeking relief under any such Person); applicable federal or state law relating to bankruptcy and (ii2) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management management, independent director services 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 ; and
(ix) the Seller’s Manager (as defined in its limited liability company agreement) shall not approvetook, or take any other action to cause refrained from taking, as 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 case 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 that were necessary on its part to ensure that be taken or not to be taken in order to operate its business and perform its obligations under the facts Transaction Documents in a manner which complied with the representations in this Section 3.1(y) and was otherwise consistent with the factual assumptions set forth described in the legal opinion issued by Sidley Austin LLP, as counsel for delivered to the Seller, in connection with this Agreement relating to Funding Agents addressing issues of substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all timesconsolidation.
Appears in 1 contract
Sources: Receivables Transfer Agreement (Nalco Finance Holdings LLC)
Separate Existence. Each of the Seller The Borrower and the Servicer Administrative Agent and the Lenders hereby acknowledges acknowledge that the Purchasers, the Purchaser Agents Administrative Agent and the Administrator Lenders are entering into the transactions contemplated by this Agreement and the other Transaction Loan Documents in reliance upon the SellerBorrower’s identity as a legal entity separate from the Servicer, each Originator, Vistra Operating Companies and their respective other Affiliates. Therefore, from and after the date hereof, each of the Seller Borrower and each of the Servicer Operating Companies shall take all steps specifically required by this Agreement to continue the Seller’s identity as a separate legal entity and necessary to make it apparent to third Persons that the Seller Borrower is an entity with assets and liabilities distinct from those of Vistra, the Servicer, each Originator, Operating Companies and any other Person, and is not a division of Vistrathe Operating Companies, 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 Borrower shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller Borrower will be a limited liability company whose primary activities are restricted in its limited liability company agreement to LLC Agreement to: (i) purchasing or acquiring Inventory on the Closing Date from the Company and otherwise acquiring Inventory after the Closing Date from any Originatorthird-party suppliers, owning, holding, granting security interests or selling interests in Pool Assets; (ii) entering into agreements and performing its obligations in accordance with any agreement providing for the selling and servicing sale of inventory in the Receivables Pool; and ordinary course of business, (iii) conducting borrowing money, or otherwise financing, or receiving capital contributions, consistent with the provisions of the Loan Documents, (iv) pledging or otherwise granting a security interest in Collateral to secure such borrowing or other activities obligations of the Borrower, (v) entering into the Inventory Services Agreement and any amendments thereto that are permitted by the terms hereof, (vi) issuing limited liability company interests as it deems provided for in its limited liability company agreement and any other securities deemed appropriate by its board of managers, (vii) taking any and all other actions necessary to maintain its existence as a limited liability company in good standing under the laws of the State of Delaware and to qualify the Borrower to do business as a foreign entity in any other state in which such qualification is required, (viii) paying the organizational, start-up and transaction expenses of the Borrower, and (ix) engaging in any lawful act or appropriate activity and exercising any powers permitted to carry out its primary activities.limited liability companies organized under the laws of the State of Delaware that are related or incidental to and necessary, convenient or advisable for the accomplishment of the above-mentioned purposes (including the establishment of bank accounts);
(b) The Seller Borrower shall not engage in any business or activity, or activity except as is consistent with the Loan Documents and permitted under its limited liability company agreement and shall not incur any indebtedness or liability, Indebtedness other than as expressly permitted by the Transaction Loan Documents.;
(ci) Not less than one independent manager member of the Borrower’s board of managers (the “Independent Manager”) shall be an individual a natural person who (iA) is not, and has shall not have been at the time of such Person’s appointment or at any time during the five-year period prior to his preceding five years and shall not be as long as such person is a director or her appointment as Independent Manager been, manager of the Borrower (1) a direct, indirect or beneficial ownerdirector, officer, director, employee, affiliatepartner, associate shareholder, member, manager or supplier Affiliate of Vistraany of the following Persons (collectively, the Servicer “Independent Parties”): the Company or any of their respective Subsidiaries or Affiliates (other than another special purpose entity which is a Subsidiary or Affiliate of 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 Company or any of its respective Subsidiaries or their Affiliates having general voting rights, (other than his 4) a Person Controlling or her service 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, and (C) is otherwise reasonably acceptable to the Administrative Agent as an independent manager or evidenced in a similar capacity writing signed by the Administrative Agent. Under this clause (c), 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 such Person); other Person in which it owns, directly or indirectly, a majority of the ownership interests, 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 operating agreement of the Seller Borrower shall at all times provide that that: (iA) the SellerBorrower’s Manager (as defined in its limited liability company agreement) 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 Seller Borrower unless the Manager and the Independent Manager shall approve the taking of such action in writing before the taking of such action; , and (iiB) such provision and each other provision requiring an Independent Manager 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.
Appears in 1 contract
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 ServicerPerformance Guarantors, each Originator, Vistra the Originators 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 or reasonably required by the Administrator or any Purchaser Agent 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 Vistraany Performance Guarantor, any Originator, the Servicer, each Originator, Servicer and any other Person, and is not a division of Vistraany Performance Guarantor, any Originator, the Servicer, the Originators, its or their respective other Affiliates Servicer 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 Datethat:
(a) The Seller will be a limited liability company whose primary activities are restricted in its limited liability company operating agreement to to: (i) purchasing or otherwise acquiring from any Originatorthe Originators or Triumph, owning, holding, granting security interests or selling interests in Pool Assets; , (ii) entering into agreements for the selling and servicing of the Receivables Pool; 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 liabilityliability (including, without limitation, any assumption or guaranty of any obligation of any Performance Guarantor, any Originator, the Servicer or any Affiliate thereof), other than as expressly permitted by the Transaction Documents.;
(c) Not less than one independent manager member of the Seller’s board of directors (the “Independent ManagerDirector”) shall be an individual a natural person (A) who (i) is not, not at the time of initial appointment and has not been at any time during the five-year period prior to his or her appointment as Independent Manager beenfive (5) years preceding such appointment: (1) an equityholder, a direct, indirect or beneficial ownerdirector, officer, director, employee, affiliatemember, associate manager (other than an independent manager), attorney or supplier partner of VistraTriumph, the Seller, Servicer or any of their Affiliates; (2) a customer of, supplier to or other person who derives more than 1% of its purchases or revenues from its activities with Triumph, Seller, Servicer or any of their Affiliates Affiliates; (3) a person or other than his entity controlling, controlled by or her service under common control with any such equity holder, partner, member, manager, customer, supplier or other person; or (4) a member of the immediate family of any such equity holder, director, officer, employee, member, manager, partner, customer, supplier or other person and (B) who has (1) prior experience as an independent director for a corporation or an independent director or independent manager of a limited liability company whose charter documents required the unanimous consent of all independent directors or in independent managers thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a similar capacity of petition seeking relief under any such Person); applicable federal or state law relating to bankruptcy and (ii2) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. Under this clause (c), 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, by contract or otherwise. The limited liability company operating agreement of the Seller shall at all times provide that that: (iA) the Seller’s Manager (as defined in its limited liability company agreement) board of directors 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 Director shall approve the taking of such action in writing before the taking of such action; , and (iiB) such provision cannot be amended without the prior written consent of the Independent Manager.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistraany Performance Guarantor, any Originator, the Servicer or any Originator or any of their respective other Affiliates.;
(e) The Seller shall conduct its affairs in accordance with its organizational documents and observe all necessary, appropriate and customary limited liability company formalities, including, but not limited to, holding all regular and special members’ and board of directors’ meetings appropriate to authorize all limited liability company action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(f) Any employee, consultant or agent of the Seller will be compensated from the Seller’s funds for services provided to the Seller, and to the extent that Seller shares the same officers or other employees as any Performance Guarantor, the Servicer or any Originator (or any other Affiliate thereof), the salaries and expenses relating 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 such common officers and employees. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(fg) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or any Performance Guarantor, the Servicer or any Originator (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; providedit being understood that Triumph, that the Servicer may in its capacity as Servicer, shall 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.;
(gh) The Seller’s operating expenses will not be paid by VistraTriumph, the Servicer, Servicer or any Originator or any other Affiliate thereof.;
(hi) The Seller will have its own separate stationery;
(j) The Seller’s books and records will be maintained separately from those of Vistraeach Performance Guarantor, the Servicer, each Originator and any other Affiliate thereof and in a manner such that it will not be difficult or costly to segregate, ascertain or otherwise identify the assets and liabilities of Seller;
(k) All financial statements of any Performance Guarantor, the Servicer or any Originator or any of their respective other Affiliates.
(i) The Seller’s assets shall not be included in the Affiliate thereof that are 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 to include Seller will disclose that (i) such Affiliates are the Seller is a separate legal entities and entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the Seller’s assets and credit are not prior to any assets or value in the Seller becoming available to satisfy the debts and obligations of such Affiliates or any other Person Seller’s equity holders and (ii) the Seller’s assets shall be listed on of the Seller’s own separate balance sheet.Seller are not available to pay creditors of the Performance Guarantors, the Servicer or the Originators or any other Affiliates of the Performance Guarantors, the Servicer or the Originators;
(jl) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of Vistrathe Performance Guarantors, the Servicer Servicer, the Originators or any Originator or any of their respective other Affiliates.Affiliates thereof;
(km) The Seller will strictly observe corporate limited liability company formalities in its dealings with Vistrathe Performance Guarantors, the Servicer Servicer, the Originators or any Originator or any of their respective other AffiliatesAffiliates thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistrathe Performance Guarantors, the Servicer Servicer, the Originators or any Originator or any of their respective other Affiliates thereof except as permitted by this AgreementAgreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer Triumph or any Originator or any of their respective Affiliate thereof (other Affiliates than Triumph in its capacity as the Servicer) has independent access.. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of the Performance Guarantors, the Originators or any Subsidiaries or other Affiliates thereof. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(ln) The Seller will maintain arm’s-length relationships with each of Vistrathe Performance Guarantors, the Servicer or any Originator Servicer, the Originators (and any of their other AffiliatesAffiliates thereof). 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, Seller on the one hand, nor any Performance Guarantor, the Servicer or any Originator, on the otherother hand, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other. The Seller Seller, the Performance Guarantors, the Servicer and the Servicer Originators will immediately promptly correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single 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 guaranteehave a separate area from each Performance Guarantor, the Servicer and each Originator for its business (which may be located at the same address as such entities) and to the extent that any other such entity has offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall not otherwise be liable, with respect to any obligation bear its fair share of any of its Affiliates.such expenses; and
(p) The To the extent not already covered in paragraphs (a) through (o) above, Seller shall be, at all times, adequately capitalized to engage comply and/or act in accordance with the transactions contemplated in its limited liability company agreement.
(q) Each provisions of Section 6.4 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 timesSale Agreement.
Appears in 1 contract
Separate Existence. Each of the Seller Borrower and the each Servicer hereby acknowledges that the Purchasers, the Purchaser Agents Lenders and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Sellereach Borrower’s identity as a legal entity separate from CB, the Servicer, each Originator, Vistra Originators and their respective other Affiliates. Therefore, from and after the date hereof, each of the Seller Borrower and the each Servicer shall take all steps specifically required by this Agreement or reasonably required by the Administrator or any Group Agent to continue the Sellereach Borrower’s identity as a separate legal entity and to make it apparent to third Persons that the Seller such Borrower is an entity with assets and liabilities distinct from those of VistraCB, the Servicer, each any Originator, any Servicer and any other Person, and is not a division of VistraCB, the Servicerany Originator, the Originators, its or their respective other Affiliates any Servicer 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 Borrower and the each Servicer shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller Each Borrower will be a limited liability purpose company whose primary activities are restricted in its limited liability company operating agreement to to: (i) purchasing or otherwise acquiring from any Originator, Originators or CB owning, holding, servicing, granting security interests or selling interests in Pool Assets and the Monetized Receivables and Related Monetized Assets; , (ii) entering into agreements for the selling and servicing of the Receivables Pool; Pool and Monetized Receivables or for borrowing from banks, financial institutions or similar entities, (iii) to purchase, hold and sell common stock or similar equity interests (“Equity Investments”) and to exercise all voting rights and other incidents of ownership with respect to the Equity Investments, (iv) to use proceeds derived from sale or ownership of Pool Assets and Equity Investments as determined by the board of directors of each Borrower and permitted by the Transaction Documents, and (iiiv) conducting such other activities as it deems necessary or appropriate to carry out its primary activities.;
(b) The Seller No Borrower shall not engage in any business or activity, or incur any indebtedness or liabilityliability (including, without limitation, any assumption or guaranty of any obligation of CB, any Originator or any Affiliate thereof), other than as expressly permitted by the Transaction Documents or, with respect to the U.S. Borrower, the Monetization Documents.;
(c) Not less than one independent manager (1) member of any Borrower’s board of directors (the “Independent ManagerDirector”) shall be an individual a natural person (A) who (i) is not, not at the time of initial appointment and has not been at any time during the five-year period prior to his or her appointment as Independent Manager beenfive (5) years preceding such appointment: (1) an equityholder, a direct, indirect or beneficial ownerdirector (other than an independent director), officer, director, employee, affiliatemember (other than a special member or similar capacity), associate manager (other than an independent manager), attorney or supplier partner of VistraCB, the any Borrower, any Servicer or any of their Affiliates; (2) a customer of, supplier to or other person who derives more than 1% of its purchases or revenues from its activities with CB, any Borrower, any Servicer or any of their Affiliates Affiliates; (3) a person or other than his entity controlling, controlled by or her service under common control with any such equity holder, partner, member, manager, customer, supplier or other person; or (4) a member of the immediate family of any such equity holder, director, officer, employee, member, manager, partner, customer, supplier or other person and (B) who has (1) prior experience as an independent director for a corporation or an independent director or independent manager of a limited liability company whose charter documents required the unanimous consent of all independent directors or in independent managers thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a similar capacity of petition seeking relief under any such Person); applicable federal or state law relating to bankruptcy and (ii2) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. Under this clause (c), 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, by contract or otherwise. The limited liability company operating agreement of the Seller each Borrower shall at all times provide that that: (iA) the Sellersuch ▇▇▇▇▇▇▇▇’s Manager (as defined in its limited liability company agreement) board of directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Seller such Borrower unless the Manager and the Independent Manager Director shall approve the taking of such action in writing before the taking of such action; , and (iiB) such provision cannot be amended without the prior written consent of the Independent Manager.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Sellerapplicable Borrower, VistraCB, the any Originator, any Servicer or any Originator or any of their respective other Affiliates.;
(e) Each Borrower shall conduct its affairs in accordance with its organizational documents and observe all necessary, appropriate and customary limited liability company formalities, including, but not limited to, holding all regular and special members’ and board of directors’ meetings appropriate to authorize all limited liability company action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(f) Any employee, consultant or agent of the Seller each Borrower will be compensated from the Seller’s funds by such Borrower for services provided to such Borrower, and to the Sellerextent that such Borrower shares the same officers or other employees as CB, any Servicer or any Originator (or any other Affiliate thereof), the salaries and expenses relating 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 such common officers and employees. The Seller No Borrower will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from each Borrower’s funds;
(fg) The Seller Each Borrower will contract with the Servicer, applicable Servicer to perform for the Seller such Borrower all operations required on a daily basis to service the Receivables Pool. The Seller Each Borrower will pay the applicable Servicer the Servicing Fee pursuant to the Transaction Documentshereto. Except as otherwise permitted by this Agreement, the Seller No Borrower will not incur any material indirect or overhead expenses for items shared with Vistra CB, any Servicer or the Servicer any Originator (or any other Affiliate thereof) that are not reflected or covered in the Servicing Fee. To the extent, if any, that the Seller any Borrower (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; providedit being understood that CBTS and OnX Enterprise Solutions Ltd., that the Servicer may in their capacity as Servicers, shall 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 SellerEach Borrower shall be responsible for payment or reimbursement of all its operating expenses;
(i) Each Borrower will conduct its business in its own name;
(j) Each Borrower’s books and records will be maintained separately from those of VistraCB, each Servicer, each Originator and any other Affiliate thereof and in a manner such that it will not be difficult or costly to segregate, ascertain or otherwise identify the assets and liabilities of such Borrower;
(k) All financial statements of CB, any Servicer or any Originator or any of their respective other Affiliates.
(i) The Seller’s assets shall not be included in the Affiliate thereof that are 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 to include such consolidated financial statements shall contain detailed notes clearly stating Borrower will disclose that (i) such Affiliates are Borrower is a separate legal entities and the Sellerentity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of such Borrower’s assets and credit are not prior to any assets or value in of Borrower becoming available to satisfy the debts and obligations of such Affiliates or any other Person Borrower’s equity holders and (ii) the Seller’s assets shall be listed on the Seller’s own separate balance sheet.of such Borrower are not available to pay creditors of CB, any Servicer or any Originators or any other Affiliates of CB, any Servicer or any Originators;
(jl) The SellerEach Borrower’s assets will be maintained in a manner that facilitates their identification and segregation from those of VistraCB, the Servicer each Servicer, each Originators or any Originator or any of their respective other Affiliates.Affiliates thereof;
(km) The Seller Each Borrower will strictly observe corporate limited liability company formalities in its dealings with VistraCB, the Servicer any Servicer, any Originators or any Originator or any of their respective other AffiliatesAffiliates thereof, and ensure that funds or other assets of the Seller are such Borrower will not be commingled with those of VistraCB, the Servicer any Servicer, any Originators or any Originator or any of their respective other Affiliates thereof except as permitted by this AgreementAgreement in connection with servicing the Pool Receivables. The Seller Each Borrower shall not maintain joint bank accounts or other depository accounts to which Vistra, the Servicer CB or any Originator or any of Affiliate thereof (other than CB, CBTS and OnX Enterprise Solutions Ltd., in their respective other Affiliates capacities as the Performance Guarantor and the Servicers) has independent access.. No Borrower is named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of CB, any Originators or any Subsidiaries or other Affiliates thereof;
(ln) The Seller Each Borrower will maintain arm’s-length relationships with each of VistraCB, the Servicer or any Originator Servicer, any Originators (and any of their other AffiliatesAffiliates thereof). Any Person that renders or otherwise furnishes services to the Seller any Borrower will be compensated by the Seller such Borrower at market rates for such services it renders or otherwise furnishes to such Borrower. None of the Seller. Neither the SellerBorrowers, on the one handCB, nor the any Servicer or any Originator, on the other, Originator 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 Each Borrower, CB, each Servicer and the Servicer each Originator will immediately promptly correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single 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.[reserved]; and
(p) The Seller To the extent not already covered in paragraphs (a) through (o) above, each Borrower shall be, at all times, adequately capitalized to engage comply and/or act in accordance with the transactions contemplated in its limited liability company agreement.
(q) Each provisions of Section 6.4 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 timesapplicable CBTS Sale Agreement.
Appears in 1 contract
Sources: Receivables Financing Agreement (Cincinnati Bell Inc)
Separate Existence. Each of the The Seller and the Servicer hereby acknowledges that the Purchasers, the Purchaser Agents and the Administrator Agent are entering into the transactions contemplated by this the Agreement and the other Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from the Servicer, Manitowoc and each Originator, Vistra and their respective other Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer shall at all times take all reasonable 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 OriginatorManitowoc, any Originator and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsManitowoc, its or their respective other Affiliates or any Originator and any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants covenant set forth hereinin paragraph (a) of this Exhibit IV, 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 Datethat:
(ai) The Seller will be a limited purpose limited liability company whose primary sole activities are restricted in its limited liability company agreement to (i) purchasing or otherwise acquiring Receivables from any Originatorthe Originators, owning, holding, granting security interests or selling interests in Pool Assets; (ii) entering into agreements for the servicing of such Receivables, selling and servicing of pledging or assigning, as applicable, such Receivables (and related Pool Assets) as contemplated by the Receivables Pool; Agreement and (iii) conducting such other activities as it deems necessary or appropriate to carry out its primary activities.purpose;
(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.
(cii) Not less than one independent manager member of the Seller’s Board of Directors (the “Independent ManagerDirector”) shall be an individual who (iA) is not, and has not at any time during the five-year period (1) 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 experience as an independent manager Independent Director for a corporation or in limited liability company whose organizational documents required the unanimous consent of all Independent Directors thereof before such entity could consent to the institution of bankruptcy or insolvency proceedings against it or could file a similar capacity of petition seeking relief under any such Person); applicable federal or state law relating to bankruptcy and (ii2) has at least three years of employment experience and is currently employed with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities and who are not (except as members of the Seller’s Board of Directors) direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Seller, Manitowoc or any Originator or any of their respective Affiliates (B) is not, and has not been for a period of five years prior to his or her appointment as an Independent Director of the Seller: (1) a director, officer, employee, partner, manager, attorney, supplier or customer of Manitowoc or any Affiliate thereof, (2) a stockholder (whether direct, indirect or beneficial), associate, advisor or supplier of Manitowoc or any Affiliate thereof, (3) a person related to any person referred to in clauses (1) or (2) above, (4) a person or other entity controlling or under common control with any such stockholder, partner, manager, customer, supplier, employee, officer or director or (5) a trustee, conservator or receiver for any member of Manitowoc or any Affiliate thereof (it being understood that, as used in this definition, “control” means the possession directly or indirectly of the power to direct or cause the direction of management policies or activities of a person or entity whether through ownership of voting securities, by contract or otherwise); provided, however, that an individual shall not be deemed to be ineligible to be an Independent Director solely because such individual serves or has served in the capacity of an “independent director” or similar capacity for special purpose entities formed by Manitowoc or any of its Affiliates and (C) is agreed to by the Agent. The limited liability company agreement of the Seller shall at all times provide that (i) that the Seller’s Manager (as defined in its limited liability company agreement) Board of Directors shall not approve, or take any other action to cause the filing of, commencement of a voluntary bankruptcy petition case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless the Manager and in each case the Independent Manager Director shall approve the taking of such action in writing before prior to the taking of such action; , (ii) for the same definition of “Independent Director” as used herein and (iii) that the provisions required by clauses (i) and (ii) such provision above cannot be amended without the prior written consent of each Independent Director and the Agent. The Independent Manager.Director’s fiduciary duty shall be to the Seller (and its creditors) and not to the Seller’s members or other equityholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who (x) shall not be an individual within the proscriptions of the first sentence of this subparagraph (ii) or any individual who has any other type of professional relationship with the Seller, Manitowoc or any Originator or any of their respective Affiliates or any management personnel of any such Person or Affiliate and (y) shall be acceptable to the Agent;
(diii) The No Independent Manager Director 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.Affiliate thereof;
(eiv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s funds own bank accounts for services provided to the SellerSeller except as provided herein in respect of the Servicing Fee. The Seller will shall 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.Receivables, which servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;
(fv) 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 shall not incur any material indirect or overhead expenses for items shared with Vistra or between the Servicer (Seller and the Originators or any other Affiliate thereof) that thereof which are not reflected in the Servicing FeeFee or otherwise appropriately allocated between such Persons based on usage in accordance with the next sentence. To the extent, if any, that the Seller (and the Originators or any Affiliate thereof) shares thereof share items of expenses not reflected in the Servicing Fee or the manager’s feeFee, 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, it being understood that the Servicer may Manitowoc shall pay all (or any portion of) the expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legalincluding, agency without limitation, legal and other fees.;
(gvi) The Seller’s operating expenses will shall not be paid by Vistra, the Servicer, any Originator or any other Affiliate thereof.thereof unless the Seller shall have agreed in writing with such Person promptly to reimburse such Person for any such payments;
(hvii) The Seller will have its own separate mailing address and stationery;
(viii) The Seller’s books and records will be maintained separately from those of Vistrathe Servicer, Manitowoc and the Servicer Originators or any respective Affiliate thereof;
(ix) Any financial statements of the Servicer, Manitowoc, any Originator or any of their respective other Affiliates.
(i) The Seller’s assets shall not be included in Affiliate thereof which are consolidated to include 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 Seller will contain detailed notes clearly stating that (i) such Affiliates are the Seller is a separate legal entities corporate entity and has sold and assigned ownership interests in 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.accounts receivable;
(jx) The Seller’s assets will be maintained in a manner that facilitates their identification identifies and segregation segregates them from those of Vistrathe Servicer, Manitowoc, the Servicer or any Originator or Originators and any of their respective other Affiliates.;
(kxi) The Seller will strictly observe corporate limited liability company formalities in its dealings with Vistrathe Servicer, Manitowoc, the Servicer or Originators and any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistrathe Servicer, Manitowoc, the Servicer Originators or any Originator or any of their respective other Affiliates except as permitted by this AgreementAffiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which Vistrathe Servicer, Manitowoc, the Servicer Originators or any Originator respective Affiliate thereof (other than Manitowoc or any of Affiliate thereof in their respective other Affiliates capacities as Servicer) has independent access.. The Seller’s funds will not at any time be pooled with any funds of the Servicer, Manitowoc, the Originators or any respective Affiliate thereof;
(lxii) The Seller shall pay to the Originators the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Servicer, Manitowoc, the Originators or any respective Affiliate thereof; and
(xiii) The Seller will maintain arm’s-arm’s length relationships with each of Vistrathe Servicer, Manitowoc, the Servicer Originators and any respective Affiliate thereof and, except as contemplated by the Transaction Documents, will have no other dealings, contractual, financial or otherwise, among themselves. Any Originator or any Originator (and any of their other Affiliates). Any Person Affiliate thereof 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 Sellerservices. Neither the No Seller, on the one hand, nor the Servicer Originator or any Originator, on the other, Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other. 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 cause the facts and assumptions relating to the Seller, and the Servicer shall cause the facts and assumptions relating to the Servicer, in each case set forth in the opinion issued opinions rendered by Sidley Austin LLP, as external counsel for to the Seller, in connection with this Agreement Seller and Servicer and relating to substantive true sale and non-consolidation issuesmatters, and in the officer’s certificates accompanying referred to in such opinionopinions, to remain true and correct in all material respects at all times.
Appears in 1 contract
Separate Existence. Each of the Seller and the Servicer JLG hereby acknowledges that the Purchasers, the Purchaser Agents Issuer and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Seller’s 's identity as a legal entity separate from the Servicer, each Originator, Vistra JLG and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer JLG shall take all steps specifically required by this the Agreement or reasonably required to continue the Seller’s 's identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of Vistra, the Servicer, each Originator, JLG and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsJLG, 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 JLG shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited liability company purpose corporation whose primary activities are restricted in its limited liability company agreement to certificate of incorporation to: (i) purchasing or otherwise acquiring from any Originatorthe Originators (or their Affiliates), owning, holding, granting security interests or selling interests in Pool Assets; Assets (or other receivables originated by the Originators or their Affiliates, and certain related assets), (ii) entering into agreements for the selling and servicing of the Receivables Pool; Pool (or other receivables pools originated by the Originators or their Affiliates), 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 member of the Seller's Board of Directors (the “"Independent Manager”Director") 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 ownerstockholder, officer, director, employee, affiliate, associate or supplier of Vistra, the Servicer JLG 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 Personthe Seller); 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 certificate of incorporation of the Seller shall at all times provide that that: (i) the Seller’s Manager (as defined in its limited liability company agreement) 's Board of Directors 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 Director 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.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer JLG or any Originator or any of their respective other Affiliates.Affiliate thereof;
(e) Any employee, consultant or agent of the Seller will be compensated from the Seller’s 's funds for services provided to the Seller. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller's funds;
(f) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer JLG (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 '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, it being understood that the Servicer may JLG shall 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 's operating expenses will not be paid by Vistra, the Servicer, any Originator JLG or any other Affiliate thereof.;
(h) All of the Seller's business correspondence and other communications shall be conducted in the Seller's own name and on its own separate stationery;
(i) The Seller’s 's books and records will be maintained separately from those of Vistra, the Servicer or JLG and any Originator or any of their respective other Affiliates.Affiliate thereof;
(ij) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer JLG or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that that: (i) such Affiliates are separate legal entities and the Seller’s assets and credit are not available to satisfy the debts and obligations a special purpose corporation exists as a Subsidiary of such Affiliates or any other Person JLG, and (ii) the Seller’s each Originator has sold receivables and other related assets shall be listed on the Seller’s own separate balance sheet.to such special purpose Subsidiary that, in turn, has sold undivided interests therein to certain financial institutions and other entities;
(jk) The Seller’s 's assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer JLG or any Originator or any of their respective other Affiliates.Affiliate thereof;
(kl) The Seller will strictly observe corporate formalities in its dealings with Vistra, the Servicer JLG or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer JLG or any Originator or any of their respective other Affiliates Affiliate thereof 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 Agreement 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 servicing 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.Pool
Appears in 1 contract
Sources: Receivables Purchase Agreement (JLG Industries Inc)
Separate Existence. Each of the Seller and the Servicer hereby acknowledges that the Purchasers, the Purchaser Agents Purchasers 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 VWR, the Servicer, each Originator, Vistra Originators 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 VistraVWR, the Servicer, each Originator, any Originator and any other Person, and is not a division of VistraVWR, the Servicer, the Originators, its or their respective other Affiliates any Originator 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 Datethat:
(a) The Seller will be a limited liability company whose primary activities are restricted in its limited liability company operating agreement to to: (i) purchasing or otherwise acquiring from any Originatorthe Originators, 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 liabilityliability (including, without limitation, any assumption or guaranty of any obligation of VWR, any Originator or any Affiliate thereof), other than as expressly permitted by the Transaction Documents.;
(c) Not At all times have a Board of Managers and not less than one independent manager (the “Independent Manager”) member of Seller’s Board of Managers shall be an individual who (iA) is nothas (1) prior experience as an Independent Director or Independent Manager for a corporation or limited liability company whose charter documents required the unanimous consent of all Independent Directors or Independent Managers 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 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 (ii2) has at least three years of employment experience with one or more entities that provide, in the ordinary course of its their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. The limited liability company agreement , a material portion of such entity’s revenue is generated through providing such independent director or independent manager services, (B) is not, and has not been for a period of five years prior to his or her appointment as an Independent Manager of the Seller shall at all times provide that Seller: (i1) the Seller’s Manager a member (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.whether direct,
Appears in 1 contract
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 SellerDepositor shall, except as otherwise provided herein or in a Transaction Document:
(i) Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement, the Depositor Loan Trust Agreement, the Trust Agreement, the Loan Purchase Agreement, the other Transaction Documents to which it is a party and each other instrument or agreement necessary or appropriate to proper administration hereof or thereof and to permit and effectuate the transactions contemplated hereby or thereby;
(ii) Maintain its own separate books and records and bank accounts separate from those of any Affiliate of the Depositor;
(iii) At all times hold itself out to the public as a separate legal and economic entity apart from any other Person, and strictly comply with all organizational formalities to maintain its separate existence;
(iv) Have a board of managers separate from that of any other Person;
(v) Not incur, create or assume any indebtedness or other liabilities or obligations other than as expressly permitted under the Permitted Securitization Transaction Documents; provided;
(vi) Correct any known misunderstanding regarding its separate identity and refrain from engaging in any activity that compromises the separate legal identity of the Depositor;
(vii) Maintain adequate capital and a sufficient number of employees, that if any employees are so needed, in light of its contemplated business purposes, transactions and liabilities and in order to pay its debts as such debts become due;
(viii) Cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities;
(ix) Not acquire any obligations or securities of any Affiliate of the Depositor other than any securities of the Issuer or any issuer with respect to a Permitted Securitization, in each case, as permitted by the Permitted Securitization Transaction Documents;
(x) File its own tax returns, if any, as may be required under applicable law, to the extent (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(xi) Except as contemplated by the Transaction Documents, not commingle its assets with assets of any other Person;
(xii) Conduct its business in its own name;
(xiii) Maintain separate financial statements, prepared in accordance with applicable generally accepted accounting principles, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person other than as a consequence of the application of consolidation rules in accordance with generally accepted accounting principles;
(xiv) Pay its own liabilities and expenses only out of its own funds;
(xv) Maintain an arm’s length relationship with unaffiliated parties, and not enter into any transaction with an Affiliate of the Seller may provide funds Depositor except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(xvi) Pay the salaries of its own employees, if any, only out of its own funds;
(xvii) Not hold out its credit or assets as being available to satisfy the obligations of any other Person nor pledge its assets for the benefit of any other Person nor make any intercompany loans to any Affiliate of the Depositor or accept any intercompany loans from any Affiliate of the Depositor except as permitted by the Permitted Securitization Transaction Documents;
(xviii) Clearly identify its offices, if any, as its offices and, to the Seller extent that the Depositor and its Affiliates have offices in connection the same location, allocate fairly and reasonably any overhead expenses that are shared with its capitalization.such Affiliates, including services performed by an employee of such Affiliates;
(oxix) The Seller Ensure that it shall not guaranteeat all times have at least one Independent Manager and at least one officer;
(xx) Use separate stationery, invoices and shall not otherwise be liable, with respect to checks bearing its own name; Not guarantee any obligation of any of its Affiliates.Affiliate;
(pxxi) The Seller shall beNot engage, at all timesdirectly or indirectly, adequately capitalized in any business other than that required or permitted to engage be performed under the Depositor LLC Agreement, the Transaction Documents or this Section 2.07(f);
(xxii) Not allow any borrowings or granting of a security interest or other transfer of assets between the Depositor and any other Person unless such action is permitted under the Permitted Securitization Transaction Documents and there is a business purpose for the Depositor and the borrowing or granting of a security interest in or other transfer of assets was not and will not be intended to impair the transactions contemplated rights or interests of creditors and was made in exchange for reasonably equivalent value and fair consideration and has been and will be appropriately documented and recorded in its records;
(xxiii) Will 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 Depositor may invest in those investments permitted under the Permitted Securitization Transaction Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Permitted Securitization Transaction Documents and permit the same to remain outstanding in accordance with such provisions;
(xxiv) Not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company agreement.or other) or own any equity interest in any other entity except as expressly permitted under the Permitted Securitization Transaction Documents; or
(qxxv) Each Not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or other transfer of any of its assets outside the ordinary course 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 timesCompany’s business.
Appears in 1 contract
Sources: Sale and Servicing Agreement (OneMain Financial Holdings, Inc.)
Separate Existence. Each of the Seller and the Servicer Greetings hereby acknowledges that the Purchasers, the Purchaser Agents Agents, the Administrator and the Administrator Liquidity Providers are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Seller’s and AGSC’s identity as a legal entity separate from the Servicer, each Originator, Vistra Greetings and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer Greetings shall take all steps specifically required by this the Agreement or reasonably required by the Administrator to continue the Seller’s and AGSC’s identity as a separate legal entity entities and to make it apparent to third Persons that each of the Seller and AGSC is an entity with assets and liabilities distinct from those of Vistra, the Servicer, each Originator, Greetings and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsGreetings, 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 Greetings shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited liability company purpose corporation whose primary activities are restricted in its limited liability company agreement to certificate of incorporation to: (i) purchasing or otherwise acquiring from any Originatorthe Originators, 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 set forth in clause (a) above or as otherwise expressly permitted by the Transaction Documents.;
(c) Not less than one independent manager member of the Seller’s Board of Directors (the “Independent ManagerDirector”) 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 ownerstockholder, officer, director, employee, affiliate, associate or supplier of Vistra, the Servicer Greetings 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 securitiesAffiliates. The limited liability company agreement certificate of incorporation of the Seller shall at all times provide that that: (i) the Seller’s Manager (as defined in its limited liability company agreement) Board of Directors 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 Director 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.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer Greetings or any Originator or any of their respective other Affiliates.Affiliate thereof;
(e) Any employee, consultant or agent of the Seller or AGSC will be compensated from the Seller’s or AGSC’s funds (as appropriate) for services provided to the SellerSeller or AGSC. The Seller will not engage any agents other than its attorneys, auditors, auditors and other professionals, professionals and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee;
(f) The Seller will contract with the Servicer, 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 DocumentsAgreement. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer Greetings (or any other Affiliate thereof) that are not reflected in the Servicing Fee. To the extent, if any, that the Seller or AGSC (or any Affiliate thereof) shares items of expenses not reflected in the Servicing Fee or the manager’s feeFee, 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, it being understood that the Servicer may Greetings shall 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 Neither the Seller’s nor AGSC’s operating expenses will not be paid by Vistra, the Servicer, any Originator Greetings or any other Affiliate thereof.;
(h) All of the Seller’s and AGSC’s business correspondence and other communications shall be conducted in their respective names and on their own separate stationery;
(i) The Seller’s and AGSC’s books and records will be maintained separately from those of Vistra, the Servicer or Greetings and any Originator or any of their respective other Affiliates.Affiliate thereof;
(ij) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer Greetings or any Originator Affiliate thereof that are consolidated to include Seller or any of their respective other Affiliates unless required in accordance with GAAP and any such consolidated financial statements shall AGSC will contain detailed notes clearly stating that that: (i) such Affiliates are separate legal entities each is a special purpose corporation and the Seller’s assets and credit are not available to satisfy the debts and obligations a Subsidiary of such Affiliates or any other Person Greetings, and (ii) the Seller’s Originators have sold Receivables and other related assets shall be listed on the Seller’s own separate balance sheet.to Seller and Seller has sold undivided interests therein to certain financial institutions and other entities;
(jk) The Seller’s and AGSC’s assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer Greetings or any Originator or any of their respective other Affiliates.Affiliate thereof;
(kl) The Each of the Seller and AGSC will strictly observe corporate formalities in its dealings with Vistra, the Servicer Greetings or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer Greetings or any Originator or any of their respective other Affiliates Affiliate thereof except as permitted by this Agreementthe Agreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which VistraGreetings and/or any Affiliate thereof (other than Greetings in its capacity as the Servicer and any permitted Sub-Servicer) has independent access. Neither the Seller nor AGSC has been named, nor has entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of Greetings or any Subsidiary or other Affiliate of Greetings. The Seller will pay to the appropriate Affiliate their respective share of the marginal increase or, in the absence of such increase, the Servicer or any Originator or any market amount of their respective other Affiliates has independent access.share of the portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;
(lm) The Seller and AGSC will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator Greetings (and any of their other AffiliatesAffiliate thereof). Any Person that renders or otherwise furnishes services to the Seller and/or AGSC will be compensated by the Seller or AGSC (as appropriate) at market rates for such services it renders or otherwise furnishes to the SellerSeller or AGSC (as appropriate). Neither the SellerSeller or AGSC, on the one hand, nor the Servicer or any OriginatorGreetings, on the otherother hand, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other. The Seller Seller, AGSC and the Servicer Greetings will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity.; and
(mn) None of Vistra, the Servicer or other Originator Greetings shall not pay the salaries of Seller’s or AGSC’s employees, if any, for services rendered by such employees exclusively for the Seller. Each of the following shall be a “Termination Event”:
(a) (i) the Seller, Greetings, any Originator or the Servicer shall fail to perform or observe any term, covenant or agreement under the Agreement or any other Transaction Document to be observed or performed by it, (ii) the Seller or the Servicer shall fail to make when due any payment or deposit to be made by it under the Agreement and such failure shall continue unremedied for one Business Day or (iii) Greetings shall resign as Servicer, and no successor Servicer reasonably satisfactory to the Administrator and the Majority Purchaser Agents shall have been appointed; provided that at all times when the Administrator is not permitted to demand that the Servicer segregate Collections pursuant to Section 1.4(b), no Termination Event or Unmatured Termination Event shall arise solely from the Seller’s or Servicer’s (whether as Greetings or as Servicer) failure to comply with the first sentence of Sections 1(j) or 2(h) of Exhibit IV to this Agreement (respectively) with respect to Collections received as wire transfers, unless and until the Servicer shall fail to transfer Collections received by it at any time the aggregate amount of such Collections during any calendar month and not previously transferred shall exceed $100,000 for such calendar month; provided, further, that with respect to the failure described in clause (a)(i) hereinabove, if such failure may be cured without any potential or actual detriment to any Purchaser, then the Seller, Greetings, any Originator or the Servicer, as applicable, shall have ten days from the earlier of (A) such Person’s knowledge of such failure and (B) notice to such Person of such failure to so cure any such failure before a Termination Event shall occur, so long as such Person is diligently attempting to effect such cure.
(nb) No Greetings (or any Affiliate thereof) shall fail to transfer to any successor Servicer when required any rights pursuant to the Agreement that Greetings (or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the Seller, Greetings or any Originator (or any of their respective officers) under or in connection with the Agreement or any other Transaction Document, or any information or report delivered by the Seller, Greetings or any Originator or the Servicer pursuant to the Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered; provided, however, that if the representation and warranty contained in Sections 1(g), 1(n) or 1(t) of Exhibit III to this Agreement shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered, such breach shall not constitute a Termination Event if the Seller shall advance funds tohave complied with its obligations with respect to such Receivable set forth in Section 1.4(e); provided, further, that if such breach may be cured without any potential or actual detriment to any Purchaser, then the Seller, Greetings or any Originator, as applicable, shall have ten days from the earlier of (A) such Person’s knowledge of such breach and (B) notice to such Person of such breach to so cure any such breach before a Termination Event shall occur, so long as such Person is diligently attempting to effect such cure.
(d) the Seller or the Servicer shall fail to deliver the Information Package pursuant to the Agreement, and such failure shall remain unremedied for two Business Days;
(e) the Agreement or any Purchase or reinvestment pursuant to the Agreement shall for any reason: (i) cease to create, or guaranty the Purchased Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage ownership or security interest to the extent of the Purchased Interest in each Pool Receivable, the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, or (ii) cease to create with respect to the Pool Assets, or the interest of the Administrator (for the benefit of the Purchasers) with respect to such Pool Assets shall cease to be, a valid and enforceable first priority perfected security interest, free and clear of any Adverse Claim;
(f) the Seller, Greetings, AGSC or any Originator shall generally not pay its debts ofas such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller, Greetings, AGSC or any Originator seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against Greetings, the Seller, except as otherwise provided herein AGSC or in the other Transaction Documents; any Originator (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days (provided, however, that an Affiliate if any such proceeding against the Seller remains undismissed or unstayed on any following day after such proceeding is filed, then any Purchaser Agent may declare the occurrence of a Termination Event by giving notice to all parties), or any of the Seller may provide funds actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Seller, Greetings, AGSC or any Originator shall take any organizational action to authorize any of the Seller actions set forth above in connection with its capitalizationthis paragraph;
(g) (i) (A) the Everyday Default Ratio shall exceed 5.0%, (B) the Disputed Default Ratio shall exceed 3.0%, (C) the Seasonal Default Ratio shall exceed 3.0%, (D) the Delinquency Ratio shall exceed 38% or (ii) the average for three consecutive calendar months of (A) the Everyday Default Ratio shall exceed 4.0%, (B) the Disputed Default Ratio shall exceed 2.5%, (C) the Seasonal Default Ratio shall exceed 2.5%, (D) the Delinquency Ratio shall exceed 34%, or (E) the Dilution Ratio shall exceed 7%; or (iii) Days Sales Outstanding shall exceed 100.
(oh) The Seller a Change in Control shall occur with respect to Seller, any Originator or Greetings;
(i) at any time (i) the sum of (A) the Aggregate Investment plus (B) the LC Amount plus (C) the Total Reserves, exceeds (ii) the sum of (A) the Net Receivables Pool Balance at such time plus (B) the Purchasers’ Share of the amount of Collections then on deposit in the Lock-Box Accounts (other than amounts set aside therein representing Discount and Fees), plus (C) the sum of all amounts then on deposit in the LC Collateral Account, and such circumstance shall not guaranteehave been cured within two Business Days;
(i) Greetings or any of its Subsidiaries shall fail to pay any principal of or premium or interest on any of its Debt that is outstanding in a principal amount of at least $20,000,000 in the aggregate when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement, mortgage, indenture or instrument relating to such Debt (and shall have not otherwise been waived); or (ii) any other event shall occur or condition shall exist under any agreement, mortgage, indenture or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement, mortgage, indenture or instrument (and shall have not been waived), if, in either case: (a) the effect of such non-payment, event or condition is to give the applicable debtholders the right (whether acted upon or not) to accelerate the maturity of such Debt, or (b) any such Debt shall be liabledeclared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Debt shall be required to be made, in each case before the stated maturity thereof;
(k) either: (i) a contribution failure shall occur with respect to any obligation Benefit Plan sufficient to give rise to a lien under Section 302(f) of ERISA, (ii) the Internal Revenue Service shall file a notice of lien asserting a claim or claims pursuant to the Internal Revenue Code with regard to any of the assets of Seller, any Originator, Greetings or any ERISA Affiliate and such lien shall have been filed and not released within 10 days, or (iii) the Pension Benefit Guaranty Corporation shall, or shall indicate its Affiliates.
(p) The Seller shall be, at all times, adequately capitalized intention in writing 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 any Originator, Greetings or any ERISA Affiliate to, either file a notice of lien asserting a claim pursuant to ERISA with this Agreement relating regard to substantive consolidation issues, and in any assets of the certificates accompanying such opinion, remain true and correct in all material respects at all times.Sell
Appears in 1 contract
Sources: Receivables Purchase Agreement (American Greetings Corp)
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 The Borrower shall take all reasonable ------------------ steps specifically required by this Agreement (including, without limitation, all steps that the Agent may from time to continue time reasonably request) to maintain the Seller’s Borrower's identity as a separate legal entity from AFS or any of its Affiliates (including any Seller) and to make it apparent manifest to third Persons parties that the Seller Borrower is an entity with assets and liabilities distinct from those of Vistra, the Servicer, AFS and 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 PersonAffiliate thereof. Without limiting the generality of the foregoing and in addition to and consistent with foregoing, 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 DateBorrower shall:
(a) The Seller will be a limited liability company whose primary activities are restricted conduct business correspondence in its limited liability company agreement to (i) purchasing or otherwise acquiring from any Originatorown name, owning, holding, granting security interests or selling interests in Pool Assets; (ii) entering into agreements for the selling follow required trust procedures and servicing of the Receivables Pool; maintain appropriate books and (iii) conducting such other activities as it deems necessary or appropriate to carry out its primary activities.records;
(b) The Seller except as set forth in the Trust Agreement, not permit any limitation on its authority to conduct its business and affairs in accordance with accepted trust practice, and shall not engage in authorize or suffer any business or activity, or incur any indebtedness or liability, Person other than as expressly permitted by the Transaction Documents.directors and officers of the Trust Trustee to act on its behalf with respect to matters (other than matters customarily delegated to others under powers of attorney) for which its representatives would customarily be responsible;
(c) Not less than one independent manager (subject to 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 terms of the Seller shall at all times provide that (i) the Seller’s Manager (as defined in its limited liability company agreement) shall not approveCustodian Agreement, maintain or take any other action cause 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 maintained by an agent of the Independent Manager.Borrower under the Borrower's control physical possession of all its books and records;
(d) The Independent Manager shall not at any time serve as a trustee in bankruptcy maintain capitalization adequate for the Seller, Vistra, the Servicer or any Originator or any conduct of their respective other Affiliates.its business;
(e) Any employee, consultant or agent account for and manage its liabilities separately from those 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.Person, including, without limitation, payment of all payroll and other administrative expenses and taxes from its own assets;
(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 maintain its assets separately from those of 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.Person;
(g) The Seller’s operating maintain offices through which its business is conducted separate from those of AFS and any Affiliates of AFS (provided that, -------- to the extent that AFS and any of its Affiliates have offices in the same location, there shall be a fair and appropriate allocation of overhead costs and expenses will not be paid by Vistraamong them, the Servicer, any Originator or any other Affiliate thereof.and each such entity shall bear its fair share of such expenses);
(h) The Seller’s books and records will be maintained separately from not commingle its funds with those of Vistra, the Servicer AFS or any Originator Affiliate of AFS or any Affiliates of their respective the Borrower except to the extent contemplated herein, or use its funds for other Affiliates.than the Borrower's uses; and
(i) The Seller’s assets ensure that any financial reports required of the Borrower 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 comply 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 issued separately from, but may be maintained in a manner that facilitates their identification and segregation from those of Vistraconsolidated with, 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 reports prepared 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.
Appears in 1 contract
Sources: Receivables Financing Agreement (Americredit Financial Services of Canada LTD)
Separate Existence. Each of The Loan Parties acknowledge that the Seller Agent and the Servicer hereby acknowledges that the Purchasers, the Purchaser Agents and the Administrator Lenders are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Sellereach Loan Party’s identity as a legal entity that is separate from the Servicer, each Originator, Vistra and their respective other AffiliatesMacy’s Entities. Therefore, from and after the date hereofClosing Date, each of the Seller and the Servicer Loan Party shall take all reasonable steps, including, without limitation, all steps specifically required by this Agreement that the Agent may from time to continue the Sellertime reasonably request, to maintain such Loan Party’s identity as a separate legal entity and to make it apparent manifest to third Persons parties that the Seller each Loan Party is an entity with assets and liabilities distinct from those of Vistra, the Servicer, each Originator, Macy’s Entities and any other Person, and that no Loan Party is not just a division of Vistra, the Servicer, the Originators, its or their respective other Affiliates or any other Personthereof. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, except as herein specifically otherwise provided, 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 DateLoan Party will:
(a) The Seller will be maintain in full effect its existence, rights and franchise as 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 under the selling and servicing laws of the Receivables Pool; state of its formation and (iii) conducting will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement, the Master Agency Agreement and the other activities as Loan Documents to which it deems is a party and each other instrument or agreement necessary or appropriate to carry out its primary activities.proper administration hereof or thereof and to permit and effectuate the transactions contemplated hereby or thereby;
(b) The Seller shall not engage in use separate stationery, invoices, checks and other business forms from those of any business or activity, or incur any indebtedness or liability, other than as expressly permitted by the Transaction Documents.Macy’s Entity and bearing its own name (each of which may be computer-generated);
(c) Not less than conduct its business and affairs solely in its own name through its duly authorized officers or agents (which agents may include the Macy’s Entities) including, in all oral and written communications such as letters, purchase orders, contracts, statements and applications and comply with all organizational formalities to maintain its separate existence;
(d) have a board of managers or directors separate from that of any Macy’s Entity;
(e) cause its board of managers or directors to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities;
(f) at all times maintain at least one independent manager Independent Manager and at least one officer;
(g) allocate all overhead expenses pursuant to and in accordance with the “Master Agency Agreement;
(h) ensure that all limited liability company actions with respect to (A) the filing for any petition of bankruptcy of such Loan Party and (B) the merger, consolidation, dissolution or liquidation of such Loan Party, in each case, are duly authorized by unanimous vote of its managers or directors (including the Independent Manager”) shall be an individual who ), as applicable;
(i) is notobserve all limited liability company formalities and record keeping, including maintaining complete 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 correct books and records of Vistra, the Servicer or any account and minutes of meetings and other proceedings of its member(s) and managers or their Affiliates directors;
(j) maintain its assets in a reasonable manner such that it will not be difficult to segregate, ascertain or identify its individual assets from those of any other Person (other than his or her service as an independent manager or in a similar capacity of any such Personother Loan Party); and ;
(iik) has at least three years of employment experience with one or more entities that providemaintain its financial, 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 and other books and records separate from those of any Macy’s Entity;
(l) maintain bank account(s) that are separate from those of any Macy’s Entity and, except as permitted in the Seller shall at all times provide that (i) Loan Documents and the Seller’s Manager (as defined in its limited liability company agreement) shall Servicing Agreements, not approve, commingle funds or take other assets of such Loan Party with those of any other action Person (including any Macy’s Entity other than any other Loan Party);
(m) pay operating expenses and liabilities, from its own funds and not permit any Macy’s Entity to cause pay any of such Loan Party’s operating expenses or liabilities (except (x) pursuant to allocation arrangements pursuant to and in accordance with the filing ofMaster Agency Agreement, a voluntary bankruptcy petition (y) for initial setup costs paid by any Macy’s Entity or (z) as otherwise may be permitted under the Loan Documents and the Servicing Agreements); provided, however that, with respect to the Seller unless the Manager and the Independent Manager shall approve the taking salaries 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 extentown officers, if any, that the Seller (are common officers or employees of such Loan Party and any Affiliate thereof) shares items of expenses not reflected in the Servicing Fee one or the managermore Macy’s feeEntity(ies), such as legal, auditing Loan Party may allocate fairly and other professional services, reasonably such expenses will be allocated salaries to the extent practical on the basis of actual use or the value of services renderedpracticable, and otherwise to the extent such allocation is not practicable, on a basis reasonably related to actual service;
(n) as of the actual use or the value Closing Date, have adequate capitalization in light of services rendered; providedits contemplated business and purpose, that the Servicer may pay all (or any portion of) the expenses relating transactions and liabilities, and will not permit distributions to the preparationParent if such distributions would leave it with inadequate capitalization in light of its contemplated business and purpose, negotiation, execution transactions and delivery of the Transaction Documents, including legal, agency and other fees.liabilities;
(go) The Seller’s operating expenses will not hold out its credit or assets or permit its credit or assets to 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 held out as being 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 handothers, nor the Servicer will it hold any Macy’s Entity out or permit any Originator, on the other, will be or will hold itself out Macy’s Entity to be responsible held out as having agreed to pay or as being liable for the debts of such Loan Party (except as contemplated by the other or the decisions or actions respecting the daily business Loan Documents and affairs of the other. The Seller and the Servicer will immediately Servicing Agreements);
(p) correct any known misunderstanding with respect to the foregoing, regarding its separate existence and they will identity;
(q) not operate or purport to operate as an integrated integrated, single economic unit with one or more Macy’s Entities; provided that the foregoing shall not preclude consolidation of such Loan Party’s financial statements with those of any Macy’s Entity in accordance with GAAP or tax reporting purposes;
(r) not seek or obtain credit or incur any obligation to any third party based upon the assets of one or more Macy’s Entities or induce any such third party to reasonably rely on the creditworthiness of one or more Macy’s Entities; it being acknowledged by each Lender that it is not relying on the creditworthiness of any of the Macy’s Entities in extending credit hereunder, and will not seek recourse to any of the Macy’s Entities for payment of any of the Obligations;
(s) not guaranty or otherwise become liable with respect to indebtedness of any Macy’s Entity nor permit guaranties or liability by any Macy’s Entity of the indebtedness of such Loan Party;
(t) maintain an arm’s-length relationship with each of its Affiliates (other or in their dealing than any other Loan Party) and cause all business transactions entered into by such Loan Party with any such Affiliates (other entity.than any other Loan Party) to be on terms that are not more or less favorable to such Loan Party, as the case may be, than terms and conditions available at the time to such Loan Party for comparable arm’s length transactions with unaffiliated Persons, in each case, with the exception of the transactions contemplated by this Agreement and the Servicing Agreements;
(mu) None of Vistra, the Servicer or other Originator shall pay the salaries of Seller’s employeesclearly identify its offices, if any., as its offices and, to the extent that any Macy’s Entities have offices in the same location, clearly identify the files and other books and records that belong to such Loan Party and allocate fairly and reasonably any overhead expenses that are shared with such Macy’s Entities, including services performed by an employee of such ▇▇▇▇’▇ Entities;
(nv) No Affiliate of the Seller shall advance funds tonot, 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 fullest extent permitted by law, engage in connection with its capitalization.
(o) The Seller shall not guaranteeany dissolution, and shall not otherwise be liableliquidation, with respect to any obligation consolidation, merger, sale or other transfer of any of its Affiliates.assets outside the ordinary course of its business except as provided for in the Loan Documents;
(pw) The Seller upon an officer or other responsible party of the Borrower or the applicable Macy’s Entity(ies) obtaining knowledge or notice that any of the foregoing provisions in this Section 6.12 has been breached or violated in any material respect, the Borrower shall be, at all times, adequately capitalized promptly notify the Agent and shall take such actions as may be reasonable and appropriate under the circumstances to engage in the transactions contemplated in its limited liability company agreement.correct and remedy such breach or violation as soon as reasonably practicable under such circumstances; and
(qx) 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 ▇▇▇▇▇ Day pursuant to Section 4.01(a)(v)(y) 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: Credit Agreement (Macy's, Inc.)
Separate Existence. Each (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the Seller entity with which such persons are concerned, and shall use its best efforts to avoid the Servicer hereby acknowledges appearance that it is conducting business on behalf of any Affiliate thereof or that the Purchasers, assets of the Purchaser Agents Borrower are available to pay the creditors of any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of any other Person.
(c) It shall pay its own operating expenses and liabilities from its own funds.
(d) It shall ensure that the Administrator are entering into annual financial statements of the Equityholder shall disclose the effects of the transactions contemplated by this Agreement hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(i) It shall not amend, supplement or otherwise modify the Special Purpose Provisions contained in its organizational documents (as defined therein), except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned).
(j) It shall at all times hold itself out to the public and all other Transaction Documents in reliance upon the Seller’s identity Persons as a legal entity separate from the Servicer, each Originator, Vistra its member and their respective from any other Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer Person.
(k) It shall take all steps specifically required by this Agreement to continue the Seller’s identity as a file its own tax returns 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, except to the extent that it is treated as a “disregarded entity” for tax purposes and is not a division required to file tax returns under Applicable Law, and shall pay any taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, showing its assets and liabilities separate and apart from those of Vistra, the Servicer, the Originators, any other Person and not have its or their respective other Affiliates or assets listed on any financial statement of 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 its assets may pay all (or any portion of) the expenses relating to the preparation, negotiation, execution and delivery be included in a consolidated financial statement 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 its 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.
so long as (i) The Seller’s assets appropriate notation 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 made on such consolidated financial statements shall contain detailed notes clearly stating (if any) to indicate its separateness from such Affiliate and to indicate that (i) such Affiliates are separate legal entities and the Seller’s its assets and credit are not available to satisfy the debts and other obligations of such Affiliates Affiliate or any other Person and (ii) the Seller’s such assets shall also be listed on the Seller’s its own separate balance sheet.
(jn) The Seller’s assets will be maintained It shall not, except for capital contributions or capital distributions permitted under the terms and conditions of its organizational documents and properly reflected on its books and records, enter into any transaction with an Affiliate except on commercially reasonable terms similar to those available to unaffiliated parties in a manner that facilitates their identification and segregation from those of Vistra, the Servicer or any Originator or any of their respective other Affiliatesan arm’s-length transaction.
(ko) The Seller will strictly observe corporate formalities It shall maintain a sufficient number of employees (which number may be zero) in light of its dealings with Vistracontemplated business purpose and pay the salaries of its own employees, the Servicer or any Originator or any of their respective other Affiliatesif any, 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 accessonly from its own funds.
(lp) The Seller will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator It shall use separate invoices bearing its own name.
(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 q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not require its equityholders to make additional capital contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with respect the Transaction Documents.
(t) It shall 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 it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the foregoingTransaction Documents.
(v) It shall not buy or hold evidence of indebtedness issued by any other Person, and they will except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits, for the avoidance of doubt, the formation of REO Asset Owners), it shall not operate form, acquire or purport to operate as an integrated economic unit with respect to each other hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in their dealing with any other entity.
(mx) None of Vistra, It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Servicer or other Originator shall pay the salaries of Seller’s employees, if anyTransaction Documents.
(ny) No Affiliate of It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by 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.
(oz) The Seller It shall not guarantee, allocate fairly and shall not otherwise be liable, reasonably any overhead expenses that are shared with respect to any obligation of any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(paa) Neither the Borrower nor the Equityholder shall take any action contrary to the “Facts and Assumptions” or “Further Assumptions” sections in the opinion or opinions of Dechert LLP, dated the Existing Effective Date, relating to certain nonconsolidation and true sale matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior written consent of at least one Independent Manager (or the unanimous written consent of all Independent Managers, if more than one). The Seller organizational documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Manager; (b) the Borrower shall not, without the prior written consent of at least one Independent Manager (or the unanimous written consent of all timesIndependent Managers, adequately capitalized if more than one), on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to engage in become insolvent, and when voting with respect to such matters, the transactions contemplated in its limited liability company agreement.
(qIndependent Manager(s) Each shall consider only the interests of the Seller Borrower, including its creditors; and (c) no Independent Manager of the Servicer will take Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Manager, together with a statement as to the reasons for such other actions as are necessary on its part to ensure removal, and (ii) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the facts and assumptions requirements set forth in the opinion issued by Sidley Austin LLP, as counsel organizational documents of the Borrower for the Seller, in connection with this Agreement relating to substantive consolidation issues, an Independent Manager. No resignation or removal of an Independent Manager shall be effective until a successor Independent Manager is appointed and in the certificates accompanying such opinion, remain true and correct in all material respects at all timeshas accepted his or her appointment. No Independent Manager may be removed other than for Cause.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (HMS Income Fund, Inc.)
Separate Existence. Each of the Seller and the Servicer Strategic Energy hereby acknowledges that the Purchasers, the Purchaser Agents Conduit Purchasers 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 Strategic Energy and their respective other its Affiliates. Therefore, from and after the date hereof, each of the Seller and the Servicer Strategic Energy shall take all steps specifically required by this the Agreement or reasonably requested by the Administrator (with reasonable notice to the Seller) 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, Strategic Energy and any other Person, and is not a division of Vistra, the Servicer, the OriginatorsStrategic Energy, 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 Strategic Energy shall take such actions as shall be required in order to ensure each of the following until the Final Termination Datethat:
(a) The Seller will be a limited purpose limited liability company whose primary activities are restricted in its limited liability company agreement to to: (i) purchasing or otherwise acquiring from any Originatorthe Originators (or their Affiliates), owning, holding, granting security interests or selling interests in Pool Assets; Assets (or other receivables originated by the Originators or their Affiliates, and certain related assets), (ii) entering into agreements for the selling and servicing of the Receivables Pool; Pool (or other receivables pools originated by the Originators or their Affiliates), and (iii) conducting such other activities as it deems are necessary or appropriate to carry out its primary such activities.;
(b) The Seller shall not engage in any business or activity, or activity except as set forth in this Agreement and the other Transaction Documents nor incur any indebtedness or liability, other than as expressly permitted by the Transaction Documents.;
(c) Not less than one independent manager member of the Seller’s Directors (the “Independent ManagerDirector”) shall be an individual who (i) is not, not and has not at any time during been, within the five-year period prior to his or her appointment as Independent Manager beenpreceding five (5) years, a direct, indirect or beneficial ownerstockholder, officer, director, employee, affiliate, associate associate, customer, creditor, consultant or supplier of Vistra, the Servicer Strategic Energy 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 securitiesAffiliates. The Seller’s limited liability company agreement of the Seller shall at all times provide that that: (i) the Seller’s Manager (as defined in its limited liability company agreement) Board of Directors shall not approve, or take any other action to cause the filing of, or join in any filing of, a voluntary bankruptcy petition or insolvency petition, dissolution, liquidation, consolidation, merger, sale of all or substantially all of its assets, assignment for the benefit of creditors, admit in writing its inability to pay its debts generally as they become due, or to engage in any other business or activity with respect to the Seller unless the Manager and the Independent Manager Director 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.Director;
(d) The Independent Manager Director shall not at any time serve as a trustee in bankruptcy for the Seller, Vistra, the Servicer Strategic Energy or any Originator or any of their respective other Affiliates.Affiliate thereof;
(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, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool., which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Seller’s funds;
(f) The Seller will contract with the Servicer, 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 Documentshereto. Except as otherwise permitted by this Agreement, the The Seller will not incur any material indirect or overhead expenses for items shared with Vistra or the Servicer Strategic Energy (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, it being understood that the Servicer may Strategic Energy shall 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 Strategic Energy or any other Affiliate thereof.;
(h) All of the Seller’s business correspondence and other communications shall be conducted in the Seller’s own name and on its own separate stationery;
(i) The Seller’s books and records will be maintained separately from those of Vistra, the Servicer or Strategic Energy and any Originator or other Affiliate thereof and any of their respective other Affiliates.Person;
(ij) The Seller’s assets shall not be included in the consolidated All financial statements of Vistra, the Servicer Strategic Energy or any Originator or any of their respective other Affiliates unless required in accordance with GAAP and any such Affiliate thereof that are consolidated financial statements shall to include Seller will contain detailed notes clearly stating that that: (i) such Affiliates are separate legal entities and the Seller’s assets and credit are not available to satisfy the debts and obligations a special purpose entity exists as a Subsidiary of such Affiliates or any other Person Strategic Energy, and (ii) the Seller’s Originators have sold receivables and other related assets shall be listed on the Seller’s own separate balance sheet.to such special purpose Subsidiary that, in turn, has sold undivided interests therein to certain financial institutions and other entities;
(jk) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of Vistra, the Servicer Strategic Energy or any Originator or Affiliate thereof and any of their respective other Affiliates.Person;
(kl) The Seller will strictly observe corporate organizational formalities in its dealings with Vistra, the Servicer Strategic Energy or any Originator or any of their respective other AffiliatesAffiliate thereof, and ensure that funds or other assets of the Seller are will not be commingled with those of Vistra, the Servicer Strategic Energy or any Originator or any of their respective other Affiliates Affiliate thereof except as permitted by this Agreementthe Agreement in connection with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or other depository accounts to which VistraStrategic Energy or any Affiliate thereof or any other Person has independent access (other than the Servicer in such capacity) and the Seller shall use separate invoices and checks from any other Person. The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of Strategic Energy or any Subsidiary or other Affiliate of Strategic Energy. The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the Servicer or market amount of its portion of the premium payable with respect to any Originator or any of their respective other Affiliates has independent access.insurance policy that covers the Seller and such Affiliate;
(lm) The Seller will maintain arm’s-length relationships with each of Vistra, the Servicer or any Originator Strategic Energy (and any of their other AffiliatesAffiliate thereof). 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, Seller nor the Servicer or any Originator, on the other, Strategic Energy 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 Strategic Energy will immediately correct any known misunderstanding misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity.;
(mn) None of Vistra, the Servicer or other Originator Strategic Energy shall not 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 does not guaranteeand will not hold itself responsible for the obligations of any other Person, and shall not otherwise be liable, with respect to any obligation guarantee or become liable for the debts of any of its Affiliates.other Person;
(p) The Seller shall be, at all times, adequately capitalized to engage in the transactions contemplated will conduct its business in its limited liability company agreement.
(q) Each of the Seller own name and the Servicer will take such shall hold itself out as a separate entity from any 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.Person;
Appears in 1 contract
Sources: Receivables Purchase Agreement (Kansas City Power & Light Co)