Separate Existence. The Borrower and the Servicer hereby acknowledge that the Lenders and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Borrower’s identity as a legal entity separate from CB, the Originators and their respective Affiliates. Therefore, from and after the date hereof, the 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 Borrower’s identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of CB, any Originator, the Servicer and any other Person, and is not a division of CB, any Originator, the 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, the Borrower and the Servicer shall take such actions as shall be required in order that: (a) The Borrower will be a limited purpose company whose primary activities are restricted in its operating agreement to: (i) purchasing or otherwise acquiring from any 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 Borrower and permitted by the Transaction Documents, and (v) conducting such other activities as it deems necessary or appropriate to carry out its primary activities; (b) The Borrower shall not engage in any business or activity, or incur any indebtedness or liability (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 (1) member of the Borrower’s board of directors (the “Independent Director”) shall be a natural person (A) who is not at the time of initial appointment and has not been at any time during the five (5) years preceding such appointment: (1) an equityholder, director (other than an independent director), officer, employee, member (other than a special member or similar capacity), manager (other than an independent manager), attorney or partner of CB, 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; (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, 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 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 (2) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. 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 operating agreement of the Borrower shall provide that: (A) the Borrower’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 Borrower unless the Independent Director shall approve the taking of such action in writing before the taking of such action, and (B) such provision cannot be amended without the prior written consent of the Independent Director; (d) The Independent Director shall not at any time serve as a trustee in bankruptcy for the Borrower, CB, any Originator, the Servicer or any of their respective 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 Borrower will be compensated by the Borrower for services provided to the Borrower, 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 Borrower will not engage any agents other than its attorneys, 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; (g) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Receivables Pool. The Borrower will pay the Servicer the Servicing Fee pursuant hereto. The Borrower will not incur any material indirect or overhead expenses for items shared with 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 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; it being understood that CB, in its capacity as Servicer, shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legal, agency and other fees; (h) The Borrower 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 CB, 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 Affiliate thereof that are consolidated to include the Borrower will disclose that (i) the 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 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 available to pay creditors of CB, the Servicer or any Originators or any other Affiliates of CB, the Servicer or any Originators; (l) The Borrower’s assets will be maintained in a manner that facilitates their identification and segregation from those of CB, the Servicer, each Originators or any Affiliates thereof; (m) The Borrower will observe limited liability company formalities in its dealings with CB, the Servicer, any Originators or any Affiliates thereof, and funds or other assets of the Borrower will not be commingled with those of CB, the Servicer, any Originators or any Affiliates thereof except as permitted by this Agreement in connection with servicing the Pool Receivables. The Borrower shall not maintain joint bank accounts or other depository accounts to which CB or any Affiliate thereof (other 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; (n) The Borrower will maintain arm’s-length relationships with CB, the Servicer, any Originators (and any Affiliates thereof). Any Person that renders or otherwise furnishes services to the Borrower will be compensated by the Borrower at market rates for such services it renders or otherwise furnishes to the Borrower. Neither the Borrower on the one hand, nor CB, the Servicer or any 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 Borrower, CB, the Servicer and each Originator will promptly correct any known 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; (o) [Reserved]; and (p) To the extent not already covered in paragraphs (a) through (o) above, the Borrower shall comply and/or act in accordance with the provisions of Section 6.4 of the Sale Agreement.
Appears in 2 contracts
Sources: Receivables Financing Agreement (Cincinnati Bell Inc), Receivables Financing Agreement (Cincinnati Bell Inc)
Separate Existence. The Borrower Each of Seller and the Servicer hereby acknowledge acknowledges and agrees that the Lenders Purchasers and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the BorrowerSeller’s identity as a legal entity separate from CB, Feed and the Originators and their respective Affiliatesother Originators. Therefore, from and after the date hereof, the Borrower each of Seller and the Servicer LOL shall take all steps specifically required by this Agreement or reasonably required by the Required Purchasers or the Administrator or any Group Agent to continue the BorrowerSeller’s identity as a separate legal entity and to make it apparent to third Persons that the Borrower Seller is an entity with assets and liabilities distinct from those of CB, any Originator, Feed and the Servicer other Originators and any other Person, and is not a division of CBFeed, any Originator, the Servicer other 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, the Borrower Seller and the Servicer LOL shall take such actions as shall be required in order that:
(a) The Borrower Seller will be a limited purpose limited liability company whose primary activities are restricted in its operating agreement to: (i) certificate of formation to purchasing or otherwise acquiring from any Originators or CB Originators, owning, holding, servicing, granting security interests interests, or selling interests 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 Borrower and permitted by the Transaction DocumentsPool, and (v) 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 Borrower Seller shall not engage in any business or activity, or incur any indebtedness or liability (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) 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 (1) member of the BorrowerSeller’s board Board of directors (the “Independent Director”) Managers shall be a natural person (A) who is not at the time of initial appointment and has not been at any time during the five (5) years preceding such appointment: (1) an equityholder, director (other than an independent director), officer, employee, member (other than a special member or similar capacity), manager (other than an independent manager), attorney or partner of CB, 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; (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, 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 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 (2) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. 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 otherwiseIndependent Manager. The operating agreement certificate of the Borrower formation of Seller shall provide that: that (Ai) the BorrowerSeller’s board Board of directors 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 Borrower Seller unless the Independent Director Manager shall approve the taking of such action in writing before prior to the taking of such action, action and (Bii) such provision cannot be amended without the prior written consent of the Independent DirectorManager;
(de) The Independent Director Manager shall not at any time serve as a trustee in bankruptcy for the BorrowerSeller, CBFeed, any Originator, the Servicer other Originator or any of their respective 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 accountsother Affiliate thereof;
(f) Any employee, consultant or agent of the Borrower Seller will be compensated by the Borrower from Seller’s funds for services provided to the Borrower, 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 employeesSeller. The Borrower Seller will not engage any agents other than its attorneys, 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 Servicer will be fully compensated for its services by payment of the Servicing Fee, Servicer’s Fee and a manager, which manager will be fully compensated from the BorrowerSeller’s funds;
(g) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Receivables Pool. The Borrower will pay the Servicer the Servicing Fee pursuant hereto. The Borrower Seller will not incur any material indirect or overhead expenses for items shared with CB, the Servicer or any Originator 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 Borrower Seller (or any other Affiliate thereof) shares items of expenses not reflected or covered 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; , it being understood that CB, in its capacity as Servicer, Feed shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legalincluding, agency without limitation, legal and other fees;
(h) The Borrower 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 Feed, any other Originator or any Affiliate thereof. Seller shall be responsible 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 payment or reimbursement its allocable portions of all its operating any shared expenses;
(i) The Borrower 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 namename 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) The Borrower’s Seller 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 will be maintained separately from those of CB, the Servicer, each Originator account 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 minutes of the Borrowermeetings and other proceedings of its members and the Board of Managers;
(k) Seller will maintain separate financial statements from the Originators. All financial statements of CBLOL, the Servicer or any Originator Feed or any Affiliate thereof that are consolidated Consolidated to include the Borrower Seller will contain appropriate footnotes or will otherwise disclose that (iA) the Borrower 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 entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the Borrowerhave received security interests in Seller’s assets 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 available to pay creditors of CB, the Servicer or any Originators or any other Affiliates of CB, the Servicer or any Originatorsassets;
(l) The BorrowerSeller’s assets will be maintained in a manner that facilitates their identification and segregation from those of CBFeed, the Servicer, each Originators any other Originator or any Affiliates other Affiliate thereof;
(m) The Borrower Seller will strictly observe limited liability company corporate formalities in its dealings with CBFeed, the Servicer, any other Originators or any Affiliates thereof, and funds or other assets of the Borrower Seller will not be commingled with those of CB, the ServicerFeed, any Originators other Originator or any Affiliates thereof except as permitted by this Agreement in connection with servicing the Pool ReceivablesAffiliate thereof. The Borrower Seller shall not maintain joint bank accounts or other depository accounts to which CB Feed, any other Originator or any Affiliate thereof (other than CB Feed 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;
(n) The Borrower Seller will maintain arm’s-length arms’-length relationships with CBFeed, the Servicer, any Originators (each other Originator and any Affiliates Affiliate thereof). Any Person that renders or otherwise furnishes services to the Borrower Seller will be compensated by the Borrower Seller at market rates for such services it renders or otherwise furnishes to the BorrowerSeller. Neither the Borrower on the one handSeller nor Feed will guaranty, nor CB, the Servicer or assume any Originator 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 Borrower, CB, the Servicer Seller and each Originator Feed will promptly immediately correct any known 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
(o) [Reserved]; and
Seller (pi) To will act solely in its own name and through its duly authorized officers or agents in the extent not already covered 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 (iii) will have and utilize its own invoices and letterhead separate from any Originator. Without limiting the foregoing, LOL and Seller agree to take all actions necessary to ensure that the corporate separateness assumptions, statements and representations set forth in paragraphs (a) through (o) above, the Borrower Exhibit 7.4 attached hereto are and shall comply and/or act in accordance with the provisions of Section 6.4 of the Sale Agreementat all times remain true and correct.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Land O Lakes Inc), Receivables Purchase Agreement (Land O Lakes Inc)
Separate Existence. The Borrower and the Servicer hereby acknowledge acknowledges that the Lenders and the Administrator Secured Parties are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Borrower’s 's identity as a legal entity separate from CB, the Originators TRM and their respective its Affiliates. Therefore, from and after the date hereof, the Borrower and the Servicer shall take all steps specifically required by this Agreement or reasonably required by the Administrator Administrative Agent or any Group the Liquidity Agent to continue the Borrower’s 's identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of CB, any Originator, the Servicer and any other Person, Person and is not a division of CB, any Originator, the 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, the each of Borrower and the Servicer shall take such actions as shall be required in order that:
(a) The Borrower will be a limited purpose company business trust whose primary activities are restricted in its operating agreement to: (i) purchasing or otherwise acquiring organizational documentation and whose purposes include borrowing funds from any Originators or CB owning, holding, servicing, granting security interests or selling interests in Pool Assets, (ii) entering into agreements for the selling Lender and servicing of the Receivables Pool or for borrowing from banks, financial institutions or similar entities, (iii) using such funds to purchase, hold and sell common stock or similar equity interests (“Equity Investments”) and provide Cash 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 DocumentsTRM ATM, and (v) conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(b) The Borrower shall not engage in any business or activity, or incur any indebtedness or liability (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 (1) member of the Borrower’s board of directors (the “Independent Director”) shall be a natural person (A) who is not at the time of initial appointment and has not been at any time during the five (5) years preceding such appointment: (1) an equityholder, director (other than an independent director), officer, employee, member (other than a special member or similar capacity), manager (other than an independent manager), attorney or partner of CB, 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; (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, 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 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 (2) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. 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 operating agreement of the Borrower shall provide that: (A) the Borrower’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 Borrower unless the Independent Director shall approve the taking of such action in writing before the taking of such action, and (B) such provision cannot be amended without the prior written consent of the Independent Director;
(d) The Independent Director shall not at any time serve as a trustee in bankruptcy for the Borrower, CB, any Originator, the Servicer or any of their respective 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 Borrower will be compensated by the Borrower from Borrower's funds for services provided to the Borrower, 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 Borrower will not engage any agents other than its attorneys, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables PoolDocuments, 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;
(gc) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Receivables Pool. The Borrower will pay the Servicer the Servicing Fee pursuant hereto. The Borrower will not incur any material indirect or overhead expenses for items shared with CB, the Servicer or any Originator (or any other Affiliate thereof) that which are not reflected in the Servicing Fee. To the extent, if any, that the Borrower Servicer (or any Affiliate thereof) shares with Borrower items of expenses expense not reflected or covered 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; it being understood that CB, in its capacity as Servicer, shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legal, agency and other fees;
(hd) The Borrower shall Except as provided in the Administration Agreement, Borrower's operating expenses will not be responsible for payment paid by Servicer or reimbursement of all its operating expensesany other Affiliate thereof;
(ie) The Borrower will conduct its business in have its own namemailing address and stationery separate from those of any other Person other than the Owner Trustee;
(jf) The Borrower’s 's books and records will be maintained separately from those of CB, 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 BorrowerPerson;
(kg) All financial statements of CB, the Servicer or any Originator or any Affiliate thereof Person that are consolidated to include the Borrower will disclose contain detailed notes clearly stating that (iA) the 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 prior to any assets or value in of Borrower becoming available to all of Borrower’s equity holders 's assets are owned by Borrower, and (ii) the assets of the Borrower are not available to pay creditors of CB, the Servicer or any Originators or any other Affiliates of CB, the Servicer or any Originators;
(l) The Borrower’s assets will be maintained in a manner that facilitates their identification and segregation from those of CB, the Servicer, each Originators or any Affiliates thereof;
(m) The Borrower will observe limited liability company formalities in its dealings with CB, the Servicer, any Originators or any Affiliates thereof, and funds or other assets of the Borrower will not be commingled with those of CB, the Servicer, any Originators or any Affiliates thereof except as permitted by this Agreement in connection with servicing the Pool Receivables. The Borrower shall not maintain joint bank accounts or other depository accounts to which CB or any Affiliate thereof (other 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;
(n) The Borrower will maintain arm’s-length relationships with CB, the Servicer, any Originators (and any Affiliates thereof). Any Person that renders or otherwise furnishes services to the Borrower will be compensated by the Borrower at market rates for such services it renders or otherwise furnishes to the Borrower. Neither the Borrower on the one hand, nor CB, the Servicer or any 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 Borrower, CB, the Servicer and each Originator will promptly correct any known 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;
(o) [Reserved]; and
(p) To the extent not already covered in paragraphs (a) through (o) above, the Borrower shall comply and/or act in accordance with the provisions of Section 6.4 of the Sale Agreement.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (TRM Corp), Loan and Servicing Agreement (TRM Corp)
Separate Existence. The Each of the Borrower and the Servicer ACE hereby acknowledge acknowledges that the Lenders and the Administrator Secured Parties are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Borrower’s 's identity as a legal entity separate from CB, the Originators ACE and their respective its Affiliates. Therefore, from and after the date hereof, the Borrower and the Servicer ACE shall take all steps specifically required by this Agreement or reasonably required by the Administrator or any Group Administrative Agent to continue the Borrower’s 's identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of CB, any Originator, the Servicer and any other Person, Person and is not a division of CB, any Originator, the 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, the each of Borrower and the Servicer ACE shall take such actions as shall be required in order that:
(a) The Borrower will be a limited purpose liability company whose primary activities are restricted in its operating agreement to: (i) purchasing or otherwise acquiring organizational documentation and whose purposes include borrowing funds from any Originators or CB owning, holding, servicing, granting security interests or selling interests in Pool Assets, (ii) entering into agreements for the selling Lender and servicing of the Receivables Pool or for borrowing from banks, financial institutions or similar entities, (iii) using such funds to purchase, hold and sell common stock or similar equity interests (“Equity Investments”) and provide Cash to exercise all voting rights and other incidents of ownership with respect SSMs to the Equity Investments, (iv) be used solely 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 Documentsprovide funds to enable ACE to cash Checks, and (v) conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(b) The Borrower shall not engage in any business or activity, or incur any indebtedness or liability (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 (1) member of the Borrower’s board of directors (the “Independent Director”) shall be a natural person (A) who is not at the time of initial appointment and has not been at any time during the five (5) years preceding such appointment: (1) an equityholder, director (other than an independent director), officer, employee, member (other than a special member or similar capacity), manager (other than an independent manager), attorney or partner of CB, 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; (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, 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 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 (2) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. 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 operating agreement of the Borrower shall provide that: (A) the Borrower’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 Borrower unless the Independent Director shall approve the taking of such action in writing before the taking of such action, and (B) such provision cannot be amended without the prior written consent of the Independent Director;
(d) The Independent Director shall not at any time serve as a trustee in bankruptcy for the Borrower, CB, any Originator, the Servicer or any of their respective 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 Borrower will be compensated by the Borrower from Borrower's funds for services provided to the Borrower, 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 Borrower will not engage any agents other than its attorneys, auditors and other professionals, and a servicer Check-Casher and any other agent contemplated by the Transaction Documents for the Receivables PoolD▇▇▇▇▇▇ts, which servicer Check-Casher will be fully compensated for its services by payment of the ▇▇ ▇▇e Servicing Fee, Fee and a manager, which manager will be fully compensated from the Borrower’s fundsCheck-Cashing Payment;
(gc) The Borrower will contract with Subject to the Servicer to perform for the Borrower all operations required on a daily basis to service the Receivables Pool. The Borrower will pay the Servicer the Servicing Fee pursuant hereto. The following sentence, Borrower will not incur any material indirect or overhead expenses for items shared with CB, the Servicer or any Originator ACE (or any other Affiliate thereof) that which are not reflected in the Servicing FeeFee and Check-Cashing Payment. To the extent, if any, that the Borrower ACE (or any Affiliate thereof) shares with Borrower items of expenses expense not reflected or covered in the Servicing Fee or and the manager’s feeCheck-Cashing Payment, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered; it being understood that CB, in its capacity as Servicer, shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legal, agency and other fees;
(hd) The Borrower shall Borrower's operating expenses will not be responsible for payment paid by ACE or reimbursement of all its operating expensesany other Affiliate thereof;
(ie) The Borrower will conduct its business in have its own namestationery separate from that of any other Person;
(jf) The Borrower’s 's books and records will be maintained separately from those of CB, 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 BorrowerPerson;
(kg) All financial statements of CB, the Servicer or any Originator or any Affiliate thereof Person that are consolidated to include the Borrower will disclose contain detailed notes clearly stating that (iA) the 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 prior to any assets or value in of Borrower becoming available to all of Borrower’s equity holders 's assets are owned by Borrower, and (ii) the assets of the Borrower are not available to pay creditors of CB, the Servicer or any Originators or any other Affiliates of CB, the Servicer or any Originators;
(l) The Borrower’s assets will be maintained in a manner that facilitates their identification and segregation from those of CB, the Servicer, each Originators or any Affiliates thereof;
(m) The Borrower will observe limited liability company formalities in its dealings with CB, the Servicer, any Originators or any Affiliates thereof, and funds or other assets of the Borrower will not be commingled with those of CB, the Servicer, any Originators or any Affiliates thereof except as permitted by this Agreement in connection with servicing the Pool Receivables. The Borrower shall not maintain joint bank accounts or other depository accounts to which CB or any Affiliate thereof (other 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;
(n) The Borrower will maintain arm’s-length relationships with CB, the Servicer, any Originators (and any Affiliates thereof). Any Person that renders or otherwise furnishes services to the Borrower will be compensated by the Borrower at market rates for such services it renders or otherwise furnishes to the Borrower. Neither the Borrower on the one hand, nor CB, the Servicer or any 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 Borrower, CB, the Servicer and each Originator will promptly correct any known 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;
(o) [Reserved]; and
(p) To the extent not already covered in paragraphs (a) through (o) above, the Borrower shall comply and/or act in accordance with the provisions of Section 6.4 of the Sale Agreement.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Ace Cash Express Inc/Tx)
Separate Existence. The Borrower and the Servicer hereby acknowledge that the Lenders and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Borrower’s identity as a legal entity separate from CB, the Originators and their respective Affiliates. Therefore, from and after the date hereof, the 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 Borrower’s identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of CB, any Originator, the Servicer and any other Person, and is not a division of CB, any Originator, the 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, the Borrower and the Servicer shall take such actions as shall be required in order that:
(a) The Borrower will be a limited purpose company whose primary activities are restricted in its operating agreement to: (i) purchasing or otherwise acquiring from any 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 Borrower and permitted by the Transaction Documents, and (v) conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(b) The Borrower shall not engage in any business or activity, or incur any indebtedness or liability (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 (1) member of the Borrower’s board of directors (the “Independent Director”) shall be a natural person (A) who is not at the time of initial appointment and has not been at any time during the five (5) years preceding such appointment: (1) an equityholder, director (other than an independent director), officer, employee, member (other than a special member or similar capacity), manager (other than an independent manager), attorney or partner of CB, 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; (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 771962042 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 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 (2) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. 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 operating agreement of the Borrower shall provide that: (A) the Borrower’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 Borrower unless the Independent Director shall approve the taking of such action in writing before the taking of such action, and (B) such provision cannot be amended without the prior written consent of the Independent Director;
(d) The Independent Director shall not at any time serve as a trustee in bankruptcy for the Borrower, CB, any Originator, the Servicer or any of their respective 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 Borrower will be compensated by the Borrower for services provided to the Borrower, 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 Borrower will not engage any agents other than its attorneys, 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;
(g) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Receivables Pool. The Borrower will pay the Servicer the Servicing Fee pursuant hereto. The Borrower will not incur any material indirect or overhead expenses for items shared with 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 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 771962042 allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered; it being understood that CB, in its capacity as Servicer, shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legal, agency and other fees;
(h) The Borrower 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 CB, 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 Affiliate thereof that are consolidated to include the Borrower will disclose that (i) the 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 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 available to pay creditors of CB, the Servicer or any Originators or any other Affiliates of CB, the Servicer or any Originators;
(l) The Borrower’s assets will be maintained in a manner that facilitates their identification and segregation from those of CB, the Servicer, each Originators or any Affiliates thereof;
(m) The Borrower will observe limited liability company formalities in its dealings with CB, the Servicer, any Originators or any Affiliates thereof, and funds or other assets of the Borrower will not be commingled with those of CB, the Servicer, any Originators or any Affiliates thereof except as permitted by this Agreement in connection with servicing the Pool Receivables. The Borrower shall not maintain joint bank accounts or other depository accounts to which CB or any Affiliate thereof (other 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;
(n) The Borrower will maintain arm’s-length relationships with CB, the Servicer, any Originators (and any Affiliates thereof). Any Person that renders or otherwise furnishes services to the Borrower will be compensated by the Borrower at market rates for such services it renders or otherwise furnishes to the Borrower. Neither the Borrower on the one hand, nor CB, the Servicer or any 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 Borrower, CB, the Servicer and each Originator will promptly correct any known 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;; 771962042
(o) [Reserved]; and
(p) To the extent not already covered in paragraphs (a) through (o) above, the Borrower shall comply and/or act in accordance with the provisions of Section 6.4 of the Sale Agreement.
Appears in 1 contract
Sources: Receivables Financing Agreement (Cincinnati Bell Inc)
Separate Existence. The Asta, the Servicer, the Originator and Borrower and the Servicer hereby acknowledge that Lender, the Lenders Administrator, the Collateral Agent and the Administrator Liquidity Agent are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Borrower’s identity as a legal entity separate from CBthe Originator, the Originators Servicer and their respective AffiliatesAsta. Therefore, from and after the date hereof, Borrower, the Borrower and Originator, the Servicer and Asta shall take all reasonable steps specifically required by this Agreement or reasonably required by the Administrator or any Group Agent to continue the Borrower’s identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of CB, any Originatorthe Servicer, the Servicer Originator and Asta and any other Person, and is not a division of CB, any Originatorthe Servicer, the Servicer Originator or Asta or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants covenant set forth hereinin Section 9.1.2, Borrower, the Borrower and Originator, the Servicer or Asta shall take such actions as shall be required in order that:
(a1) The Borrower will be a special purpose, bankruptcy-remote limited purpose liability company whose primary activities are restricted to the purposes described in its operating agreement to: (i) purchasing or otherwise acquiring from any Originators or CB owninglimited liability company agreement, holding, servicing, granting security interests or selling interests in Pool Assets, (ii) including 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 Borrower and permitted transactions contemplated by the Transaction Documents, Documents and (v) conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(b2) The Borrower shall not engage has at least one independent manager as required under its limited liability company agreement, which independent manager has been approved in any business or activity, or incur any indebtedness or liability (including, without limitation, any assumption or guaranty of any obligation of CB, any Originator or any Affiliate thereof), other than as expressly permitted writing by the Transaction DocumentsAdministrator;
(c) Not less than one (1) member of the Borrower’s board of directors (the “Independent Director”) shall be a natural person (A) who is not at the time of initial appointment and has not been at any time during the five (5) years preceding such appointment: (1) an equityholder, director (other than an independent director), officer, employee, member (other than a special member or similar capacity), manager (other than an independent manager), attorney or partner of CB, 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; (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, 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 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 (2) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. 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 operating agreement of the Borrower shall provide that: (A) the Borrower’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 Borrower unless the Independent Director shall approve the taking of such action in writing before the taking of such action, and (B) such provision cannot be amended without the prior written consent of the Independent Director;
(d) The Independent Director shall not at any time serve as a trustee in bankruptcy for the Borrower, CB, any Originator, the Servicer or any of their respective 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 Borrower will be compensated by the from funds of Borrower for services provided to the Borrower, 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 Borrower will not engage any no agents other than its the Servicer (it being understood that the Servicer may engage attorneys, auditors and sub-servicers or other professionalsagents) for the Receivables, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool, which servicer Servicer will be fully compensated for its services by payment of to Borrower pursuant to the Servicing Fee, and a manager, which manager will be fully compensated from the Borrower’s fundsAgreement;
(g4) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Receivables Poolits Receivables. The Borrower will pay the Servicer the Servicing Fee pursuant hereto. The Fee;
(5) Borrower will not incur pay its proportionate share of any material indirect or overhead expenses for items shared with CBamong Borrower and Asta, the Servicer or any the Originator (or any other Affiliate thereof) that are not reflected in the Servicing Fee. To the extent, if any, that the 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; it being understood that CB, in its capacity as Servicer, shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legal, agency and other fees);
(h6) The Borrower shall Borrower’s material operating expenses will not be responsible for payment paid by Asta, the Servicer or reimbursement of all its operating expensesthe Originator (or any Affiliate thereof);
(i7) The Borrower will conduct its business in have its own namestationery;
(j) The 8) Borrower’s books and records will be maintained separately from those of CBAsta, the Servicer, each Servicer and the 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 Borrowerthereof);
(k9) All financial statements of CB, the Servicer or any Originator or any Affiliate thereof that are consolidated to include the Borrower will disclose that (i) the 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 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 available to pay creditors of CB, the Servicer or any Originators or any other Affiliates of CB, the Servicer or any Originators;
(l) The Borrower’s assets will be maintained in a manner that facilitates their identification and segregation from those of CBAsta, the Servicer, each Originators Servicer or the Originator (or any Affiliates Affiliate thereof);
(m10) The Borrower will strictly observe all limited liability company formalities in its dealings with CBAsta, the Servicer, any Originators Servicer or the Originator (or any Affiliates Affiliate thereof), and funds or other assets of the Borrower will not be commingled with those of CBAsta, the Servicer, any Originators Servicer or the Originator (or any Affiliates thereof except as permitted by this Agreement in connection with servicing the Pool Receivablesother Affiliate thereof). The Borrower shall not maintain joint bank accounts or other depository accounts to which CB Asta or any Affiliate thereof (other 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;
(n11) The Borrower will maintain arm’s-length relationships with CBAsta, the Servicer, any Originators Servicer and the Originator (and any Affiliates Affiliate thereof). Any Person that renders or otherwise furnishes services to the Borrower will be compensated by the Borrower thereby at market rates for such services it renders or otherwise furnishes to the thereto. None of Borrower. Neither the Borrower on the one hand, nor CBAsta, the Servicer or the Originator (or any Originator 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; and
(12) Borrower’s funds and other assets will be identifiable and will not be commingled with those of any direct or ultimate parent of Borrower or any subsidiary or affiliate of any such parent (except for any incidental commingling pursuant to the Servicing Agreement and any incidental commingling in the case of any misdirected payment of a Receivable, in which case such commingled funds shall be identified and separated as soon as practicable after the receipt of such payment). The Additionally, Borrower, CBthe Originator, the Servicer and each Originator will promptly correct any known misrepresentation with respect to the foregoingAsta shall at all times, 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;
(o) [Reserved]; and
(p) To the extent not already covered in paragraphs (a) through (o) above, the Borrower shall comply and/or act in accordance with the provisions of Section 6.4 of facts and assumptions set forth in the Sale Agreementopinions issued by L▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC on the date hereof relating to certain bankruptcy matters and in the certificates accompanying such opinions.
Appears in 1 contract
Separate Existence. The Borrower Each of Seller and the Servicer hereby acknowledge acknowledges and agrees that the Lenders Purchasers and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Borrower’s Seller's identity as a legal entity separate from CB, Feed and the Originators and their respective Affiliatesother Originators. Therefore, from and after the date hereof, the Borrower each of Seller and the Servicer Feed shall take all steps specifically required by this Agreement or reasonably required by the Required Purchasers or the Administrator or any Group Agent to continue the Borrower’s Seller's identity as a separate legal entity and to make it apparent to third Persons that the Borrower Seller is an entity with assets and liabilities distinct from those of CB, any Originator, Feed and the Servicer other Originators and any other Person, and is not a division of CBFeed, any Originator, the Servicer other 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, the Borrower Seller and the Servicer Feed shall take such actions as shall be required in order that:
(a) The Borrower Seller will be a limited purpose limited liability company whose primary activities are restricted in its operating agreement to: (i) certificate of formation to purchasing or otherwise acquiring from any Originators or CB Originators, owning, holding, servicing, granting security interests interests, or selling interests 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 Borrower and permitted by the Transaction DocumentsPool, and (v) 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 Borrower Seller shall not engage in any business or activity, or incur any indebtedness or liability (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) 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 (1) member of the Borrower’s board Seller's Board of directors (the “Independent Director”) Managers shall be a natural person (A) who is not at the time of initial appointment and has not been at any time during the five (5) years preceding such appointment: (1) an equityholder, director (other than an independent director), officer, employee, member (other than a special member or similar capacity), manager (other than an independent manager), attorney or partner of CB, 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; (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, 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 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 (2) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. 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 otherwiseIndependent Manager. The operating agreement certificate of the Borrower formation of Seller shall provide that: that (Ai) the Borrower’s board Seller's Board of directors 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 Borrower Seller unless the Independent Director Manager shall approve the taking of such action in writing before prior to the taking of such action, action and (Bii) such provision cannot be amended without the prior written consent of the Independent DirectorManager;
(de) The Independent Director Manager shall not at any time serve as a trustee in bankruptcy for the BorrowerSeller, CBFeed, any Originator, the Servicer other Originator or any of their respective 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 accountsother Affiliate thereof;
(f) Any employee, consultant or agent of the Borrower Seller will be compensated by the Borrower from Seller's funds for services provided to the Borrower, 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 employeesSeller. The Borrower Seller will not engage any agents other than its attorneys, 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 Servicer will be fully compensated for its services by payment of the Servicing Fee, Servicer's Fee and a manager, which manager will be fully compensated from the Borrower’s Seller's funds;
(g) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Receivables Pool. The Borrower will pay the Servicer the Servicing Fee pursuant hereto. The Borrower Seller will not incur any material indirect or overhead expenses for items shared with CB, the Servicer or any Originator 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 Borrower Seller (or any other Affiliate thereof) shares items of expenses not reflected or covered 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; , it being understood that CB, in its capacity as Servicer, Feed shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legalincluding, agency without limitation, legal and other fees;
(h) The Borrower 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 Feed, any other Originator or any Affiliate thereof. Seller shall be responsible 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 payment or reimbursement its allocable portions of all its operating any shared expenses;
(i) The Borrower 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 namename 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) The Borrower’s Seller 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 will be maintained separately from those of CB, the Servicer, each Originator account 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 minutes of the Borrowermeetings and other proceedings of its members and the Board of Managers;
(k) Seller will maintain separate financial statements from the Originators. All financial statements of CBLOL, the Servicer or any Originator Feed or any Affiliate thereof that are consolidated Consolidated to include the Borrower Seller will contain appropriate footnotes or will otherwise disclose that (iA) the Borrower 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 entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the Borrower’s assets prior to any assets or value have received security interests in of Borrower becoming available to of Borrower’s equity holders and (ii) the assets of the Borrower are not available to pay creditors of CB, the Servicer or any Originators or any other Affiliates of CB, the Servicer or any OriginatorsSeller's assets;
(l) The Borrower’s Seller's assets will be maintained in a manner that facilitates their identification and segregation from those of CBFeed, the Servicer, each Originators any other Originator or any Affiliates other Affiliate thereof;
(m) The Borrower Seller will strictly observe limited liability company corporate formalities in its dealings with CBFeed, the Servicer, any other Originators or any Affiliates thereof, and funds or other assets of the Borrower Seller will not be commingled with those of CB, the ServicerFeed, any Originators other Originator or any Affiliates thereof except as permitted by this Agreement in connection with servicing the Pool ReceivablesAffiliate thereof. The Borrower Seller shall not maintain joint bank accounts or other depository accounts to which CB Feed, any other Originator or any Affiliate thereof (other than CB Feed 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;
(n) The Borrower Seller will maintain arm’s-length arms'-length relationships with CBFeed, the Servicer, any Originators (each other Originator and any Affiliates Affiliate thereof). Any Person that renders or otherwise furnishes services to the Borrower Seller will be compensated by the Borrower Seller at market rates for such services it renders or otherwise furnishes to the BorrowerSeller. Neither the Borrower on the one handSeller nor Feed will guaranty, nor CB, the Servicer or assume any Originator 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 Borrower, CB, the Servicer Seller and each Originator Feed will promptly immediately correct any known 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
(o) [Reserved]; and
Seller (pi) To will act solely in its own name and through its duly authorized officers or agents in the extent not already covered 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 (iii) will have and utilize its own invoices and letterhead separate from any Originator. Without limiting the foregoing, Feed and Seller agree to take all actions necessary to ensure that the corporate separateness assumptions, statements and representations set forth in paragraphs (a) through (o) above, the Borrower Exhibit 7.4 attached hereto are and shall comply and/or act in accordance with the provisions of Section 6.4 of the Sale Agreementat all times remain true and correct.
Appears in 1 contract
Separate Existence. The Borrower Each of Seller and Parent hereby acknowledges that each Purchaser, the Servicer hereby acknowledge that Program Support Providers, the Lenders Agents and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Borrower’s Seller's identity as a legal entity separate from CB, the Originators and their respective AffiliatesParent. Therefore, from and after the date hereof, the Borrower each of Seller and the Servicer Parent shall take all steps specifically required by this Agreement or reasonably required by any Purchaser, any Agent or the Administrator or any Group Agent to continue the Borrower’s Seller's identity as a separate legal entity and to make it apparent to third Persons that the Borrower Seller is an entity with assets and liabilities distinct from those of CB, any Originator, the Servicer Parent and any other Person, and is not a division of CB, any Originator, the Servicer 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, the Borrower each of Seller and the Servicer Parent shall take such actions as shall be required in order that:
(a) The Borrower Seller will be a limited purpose company corporation whose primary activities are restricted in its operating agreement to: (i) certificate of incorporation to purchasing or otherwise acquiring from any Originators or CB the Originators, owning, holding, servicing, granting security interests interests, or selling interests 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 Borrower and permitted by the Transaction DocumentsPool, and (v) conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(b) The Borrower Seller shall not engage in any business or activity, or incur any indebtedness or liability (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 (1) member of the Borrower’s board Seller's Board of directors (the “Directors shall be an Independent Director”) shall be a natural person (A) who is not at the time of initial appointment and has not been at any time during the five (5) years preceding such appointment: (1) an equityholder, director (other than an independent director), officer, employee, member (other than a special member or similar capacity), manager (other than an independent manager), attorney or partner of CB, 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; (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, 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 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 (2) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. 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 operating agreement certificate of the Borrower incorporation of Seller shall provide that: that (Ai) the Borrower’s board Seller's Board of directors 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 Borrower Seller unless the Independent Director shall approve the taking of such action in writing before prior to the taking of such action, action and (Bii) such provision cannot be amended without the prior written consent of the Independent Director;
(d) The Independent Director shall not at any time serve as a trustee in bankruptcy for the BorrowerSeller, CB, any Originator, the Servicer Parent or any of their respective AffiliatesAffiliate thereof;
(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 Borrower Seller will be compensated by the Borrower from Seller's funds for services provided to the Borrower, 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 employeesSeller. The Borrower Seller will not engage any agents other than its attorneys, auditors and other professionals, and a servicer and any other agent Servicer as contemplated by the Transaction Documents for the Receivables Pool, which servicer Servicer will be fully compensated for its services by payment of the Servicing Fee, Servicer's Fee and a manager, which manager will be fully compensated from the Borrower’s Seller's funds;
(gf) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Receivables Pool. The Borrower will pay the Servicer the Servicing Fee pursuant hereto. The Borrower Seller will not incur any material indirect or overhead expenses for items shared with CB, the Servicer or any Originator 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 Borrower Seller (or any other Affiliate thereof) shares share items of expenses not reflected or covered 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; , it being understood that CB, in its capacity as Servicer, Parent shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legalincluding, agency without limitation, legal and other fees;
(g) Seller's operating expenses will not be paid by Parent or any other Affiliate thereof;
(h) The Borrower shall be responsible for payment or reimbursement of all Seller will have its operating expensesown stationery;
(i) The Borrower will conduct its business in its own name;
(j) The Borrower’s Seller's books and records will be maintained separately from those of CB, the Servicer, each Originator Parent 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 Borrowerthereof;
(kj) All financial statements of CB, the Servicer or any Originator Parent or any Affiliate thereof that are consolidated to include the Borrower Seller will disclose contain detailed notes clearly stating that (iA) the Borrower all of Seller's assets are owned by Seller, and (B) Seller 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 prior to any assets or value have received security interests in of Borrower becoming available to of Borrower’s equity holders and (ii) the assets of the Borrower are not available to pay creditors of CB, the Servicer or any Originators or any other Affiliates of CB, the Servicer or any OriginatorsSeller's assets;
(lk) The Borrower’s Seller's assets will be maintained in a manner that facilitates their identification and segregation from those of CB, the Servicer, each Originators Parent or any Affiliates Affiliate thereof;
(ml) The Borrower Seller will strictly observe limited liability company corporate formalities in its dealings with CB, the Servicer, any Originators Parent or any Affiliates Affiliate thereof, and funds or other assets of the Borrower Seller will not be commingled with those of CB, the Servicer, any Originators Parent or any Affiliates Affiliate thereof except as permitted by this Agreement in connection with servicing the Pool Receivables. The Borrower Seller shall not maintain joint bank accounts or other depository accounts to which CB Parent or any Affiliate thereof (other than CB Parent 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;; and
(nm) The Borrower Seller will maintain arm’s-length arms'-length relationships with CB, the Servicer, any Originators Parent (and any Affiliates Affiliate thereof). Any Person that renders or otherwise furnishes services to the Borrower Seller will be compensated by the Borrower Seller at market rates for such services it renders or otherwise furnishes to the BorrowerSeller. Neither the Borrower on the one hand, Seller nor CB, the Servicer or any Originator 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 Borrower, CB, the Servicer Seller and each Originator Parent will promptly immediately correct any known 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;
(o) [Reserved]; and
(p) To the extent not already covered in paragraphs (a) through (o) above, the Borrower shall comply and/or act in accordance with the provisions of Section 6.4 of the Sale Agreement.
Appears in 1 contract
Sources: Receivables Purchase Agreement (D & K Healthcare Resources Inc)
Separate Existence. The Borrower and the Servicer hereby acknowledge that the Lenders and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Borrower’s identity as a legal entity Seller shall at all times:
(i) maintain its deposit account or accounts separate from CB, the Originators and their respective Affiliates. Therefore, from and after the date hereof, the 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 Borrower’s identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of CB, any Originator, the Servicer Purchaser and any other Person, and is ensure that its funds will not a division of CB, any Originator, be diverted to the Servicer or any other Person. Without limiting Purchaser nor will such funds be commingled with the generality funds of the foregoing and in addition Purchaser (other than funds deposited to and consistent with the other covenants set forth hereina Lock-Box Account, the Borrower and the Servicer shall take such actions as shall which funds may be required in order that:commingled for a period not exceeding two (2) Business Days);
(a) The Borrower will be a limited purpose company whose primary activities are restricted in its operating agreement to: (i) purchasing or otherwise acquiring from any 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 Borrower and permitted by the Transaction Documents, and (v) conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(b) The Borrower shall not engage in any business or activity, or incur any indebtedness or liability (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 (1) member of the Borrower’s board of directors (the “Independent Director”) shall be a natural person (A) who is not at the time of initial appointment and has not been at any time during the five (5) years preceding such appointment: (1) an equityholder, director (other than an independent director), officer, employee, member (other than a special member or similar capacity), manager (other than an independent manager), attorney or partner of CB, 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; (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, 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 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 (2) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. 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 operating agreement of the Borrower shall provide that: (A) the Borrower’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 Borrower unless the Independent Director shall approve the taking of such action in writing before the taking of such action, and (B) such provision cannot be amended without the prior written consent of the Independent Director;
(d) The Independent Director shall not at any time serve as a trustee in bankruptcy for the Borrower, CB, any Originator, the Servicer or any of their respective 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 Borrower will be compensated by the Borrower for services provided to the Borrower, and to the extent that the Borrower it shares the same any officers or other employees as CB, with the Servicer or any Originator (or any other Affiliate thereof)Purchaser, the salaries of and the expenses relating related to providing benefits to such officers and other employees shall be fairly allocated among such entitiesit and the Purchaser, and each such entity the Seller and the Purchaser shall bear its their respective fair share of the salary and benefit costs associated with all such common officers and employees. The Borrower will not engage any agents other than its attorneys;
(iii) to the extent that it jointly contracts with the Purchaser to do business with vendors or service providers or to share overhead expenses, auditors the costs incurred in so doing shall be allocated fairly between it and other professionalsthe Purchaser, and a servicer it and any other agent the 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 so doing shall be fairly allocated between it and the Purchaser in proportion to the benefit of the goods or services each is provided, and the Seller and the Purchaser shall bear their respective fair shares of such costs;
(iv) enter into all material transactions with the Purchaser, whether currently existing or hereafter entered into, only on an arm's length basis, it being understood and agreed that the transactions contemplated by in the Transaction Documents for meet the Receivables Pool, which servicer will be fully compensated for its services by payment requirements of the Servicing Fee, and a manager, which manager will be fully compensated from the Borrower’s fundsthis clause (iv);
(gv) The Borrower will contract with maintain office space that is physically segregated from the Servicer to perform for office space of the Borrower all operations required on a daily basis to service Purchaser (but which may be located at the Receivables Pool. The Borrower will pay same address as the Servicer the Servicing Fee pursuant hereto. The Borrower will not incur any material indirect or overhead expenses for items shared with CBPurchaser) and, 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 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 that it and the basis Purchaser have offices in the same location, there shall be a fair and appropriate allocation of actual use or the value of services renderedoverhead costs between them, and otherwise on a basis reasonably related to the actual use or the value each shall bear its fair share of services rendered; it being understood that CB, in its capacity as Servicer, shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legal, agency and other fees;
(h) The Borrower shall be responsible for payment or reimbursement of all its operating such expenses;
(ivi) The Borrower will take, or refrain from taking, as the case may be, all other actions that are necessary to be taken or not to be taken in order to comply with this Section 5.1;
(vii) cause each Affiliate included in the Parent Group to conduct its business in its own name;
(j) The Borrower’s books and records will be maintained separately from those of CB, the Servicer, each Originator and any other Affiliate thereof and in a manner such that it will designed not be difficult or costly to segregate, ascertain or otherwise identify mislead third parties as to the assets and liabilities separate identity of the Borrower;
(k) All financial statements of CB, the Servicer or any Originator or any Affiliate thereof that are consolidated to include the Borrower will disclose that (i) the 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 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 available to pay creditors of CB, the Servicer or any Originators or any other Affiliates of CB, the Servicer or any Originators;
(l) The Borrower’s assets will be maintained in a manner that facilitates their identification and segregation from those of CB, the Servicer, each Originators or any Affiliates thereof;
(m) The Borrower will observe limited liability company formalities in its dealings with CB, the Servicer, any Originators or any Affiliates thereof, and funds or other assets of the Borrower will not be commingled with those of CB, the Servicer, any Originators or any Affiliates thereof except as permitted by this Agreement in connection with servicing the Pool Receivables. The Borrower shall not maintain joint bank accounts or other depository accounts to which CB or any Affiliate thereof (other 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;
(n) The Borrower will maintain arm’s-length relationships with CB, the Servicer, any Originators (and any Affiliates thereof). Any Person that renders or otherwise furnishes services to the Borrower will be compensated by the Borrower at market rates for such services it renders or otherwise furnishes to the Borrower. Neither the Borrower on the one hand, nor CB, the Servicer or any 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 Borrower, CB, the Servicer and each Originator will promptly correct any known 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;
(o) [Reserved]Purchaser; and
(pviii) To cause each Affiliate included in the extent not already covered in paragraphs (a) through (o) above, the Borrower shall Parent Group to comply and/or act in accordance with the provisions of Section 6.4 each of the Sale Agreementfactual assumptions such that each such assumption contained in the legal opinion of King & Spalding delivered pursuant to the Section 4.1(k) of the Receivables Transfer Agreement is true and correct.
Appears in 1 contract
Separate Existence. The Borrower hereby acknowledges that Administrative Agent and the Servicer hereby acknowledge that the Lenders and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Borrower’s identity as a legal entity separate from CB, the Originators other Loan Parties and their respective Affiliatesany other Affiliate thereof. Therefore, from and after the date hereof, the Borrower and the Servicer shall take all reasonable steps specifically required by this Agreement or reasonably required by the Administrator or any Group Agent to continue the Borrower’s identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of CB, any Originator, the Servicer other Loan Parties and any other Person, and is not a division of CB, any Originator, the Servicer Loan Party or any other Person. Without limiting the generality of the foregoing and in addition to to, and consistent with with, the other covenants covenant set forth hereinin Section 9.1.2, the Borrower and the Servicer shall take such actions as shall be required in order that:
(a) The Borrower will shall be a limited special purpose company entity whose primary activities are restricted to the acquisition, management and holding of the Assets described in its operating agreement to: (i) purchasing or otherwise acquiring from any Originators or CB owningthis Agreement and activities reasonably incidental thereto, holding, servicing, granting security interests or selling interests in Pool Assets, (ii) including 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 Borrower and permitted by the Transaction Documents, Documents to which it is a party and (v) conducting such other activities as it deems necessary or appropriate to carry out its primary such activities;
(b) The Borrower shall not engage have at least one independent director as required under its organizational documents, which independent director shall have been approved in any business or activity, or incur any indebtedness or liability (including, without limitation, any assumption or guaranty of any obligation of CB, any Originator or any Affiliate thereof), other than as expressly permitted writing by the Transaction DocumentsAdministrative Agent, provided that if such independent director shall resign, be removed, die or become disabled, the Borrower shall cause a new independent director satisfactory to the Administrative Agent to be elected and qualified within five (5) Business Days;
(c) Not less than one (1) member of the Borrower’s board of directors (the “Independent Director”) shall be a natural person (A) who is not at the time of initial appointment and has not been at any time during the five (5) years preceding such appointment: (1) an equityholder, director (other than an independent director), officer, employee, member (other than a special member or similar capacity), manager (other than an independent manager), attorney or partner of CB, 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; (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, 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 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 (2) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. 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 operating agreement of the Borrower shall provide that: (A) the Borrower’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 Borrower unless the Independent Director shall approve the taking of such action in writing before the taking of such action, and (B) such provision cannot be amended without the prior written consent of the Independent Director;
(d) The Independent Director shall not at any time serve as a trustee in bankruptcy for the Borrower, CB, any Originator, the Servicer or any of their respective 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 Borrower will be compensated by the from funds of Borrower for services provided to the Borrower, and to the extent that the . Any agent engaged by 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 Borrower will not engage any agents other than its attorneys, 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 to Borrower’s funds;
(gd) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Receivables Pool. The Borrower will pay the Servicer the Servicing Fee pursuant hereto. The Borrower will not incur its proportionate share of any material indirect or overhead expenses for items shared with CB, the Servicer or any Originator (or among Borrower and any other Affiliate thereof) that are not reflected in the Servicing Fee. To the extent, if any, that the Borrower Loan Party (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; it being understood that CB, in its capacity as Servicer, shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legal, agency and other feessufficient funds are available;
(he) The Borrower shall Borrower’s operating expenses will not be responsible for payment paid by any other Loan Party (or reimbursement of all its operating expensesany Affiliate thereof) except to the extent that such Person has been compensated therefor;
(if) The Borrower will conduct its business in have its own namestationery;
(jg) The Borrower’s books and records will be maintained separately from those of CB, the Servicer, each Originator and any other Loan Party (or Affiliate thereof and in a manner such that it will not be difficult or costly to segregatethereof), ascertain or otherwise identify the assets and liabilities of the Borrower;
(k) All financial statements of CBprovided, the Servicer or any Originator or any Affiliate thereof that are consolidated to include the Borrower will disclose that (i) the Borrower is a separate legal entity with its own separate creditors who will be entitledhowever, upon its liquidation, to be satisfied out of the Borrower’s assets prior to any assets or value in of Borrower becoming available to of Borrower’s equity holders and (ii) the assets may be consolidated with those of the Borrower are not available to pay creditors of CB, the Servicer or any Originators or any other Affiliates of CB, the Servicer or any OriginatorsREIT for tax and financial reporting purposes;
(lh) The Borrower’s assets will be maintained in a manner that facilitates their identification and segregation from those of CB, the Servicer, each Originators other Loan Parties (or any Affiliates Affiliate thereof);
(mi) The Borrower will strictly observe limited liability company all corporate formalities in its dealings with CB, the Servicer, any Originators other Loan Parties (or any Affiliates Affiliate thereof), and funds or other assets of the Borrower will not be commingled with those of CB, the Servicer, any Originators other Loan Parties (or any Affiliates thereof except as permitted by this Agreement in connection with servicing the Pool ReceivablesAffiliate thereof). The Borrower shall not maintain joint bank accounts or other depository accounts to which CB any other Loan Party or any Affiliate thereof (other 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;; and
(nj) The Borrower will maintain arm’s-length relationships with CB, the Servicer, any Originators other Loan Parties (and any Affiliates Affiliate thereof). Any Person Loan Party (or Affiliate thereof) that renders or otherwise furnishes services to the Borrower will be compensated by the Borrower thereby at market rates for such services it renders or otherwise furnishes to thereto. None of the Borrower. Neither the Borrower on the one hand, nor CB, the Servicer other Loan Parties (or any Originator 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 Borrower, CB, the Servicer and each Originator will promptly correct any known 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;
(o) [Reserved]; and
(p) To the extent not already covered in paragraphs (a) through (o) above, the Borrower shall comply and/or act in accordance with the provisions of Section 6.4 of the Sale Agreement.
Appears in 1 contract
Sources: Loan Agreement (CapLease, Inc.)
Separate Existence. (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 entity with which such persons are concerned, and shall use its best efforts to avoid the Servicer hereby acknowledge appearance that it is conducting business on behalf of any Affiliate thereof or that the Lenders assets of the Borrower are available to satisfy 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 not hold itself out as being liable for the Administrator are entering into debts of any other Person. It shall not pledge its assets to secure the transactions 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 satisfy 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 limited commingling of the Collections and/or Reference Asset Collections by this Agreement the Servicer, 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) 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).
(h) It shall at all times hold itself out to the public and all other Transaction Documents in reliance upon the Borrower’s identity Persons as a legal entity separate from CB, the Originators its member and their respective Affiliates. Therefore, from and after the date hereof, the Borrower and the Servicer any other Person.
(i) It shall take all steps specifically required by this Agreement or reasonably required by the Administrator or any Group Agent to continue the Borrower’s identity as a file its own tax returns separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of CB, any Originator, the Servicer and any other Person, except to the extent that it is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under Applicable Law, and shall pay any taxes required to be paid under Applicable Law.
(j) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(k) It shall maintain separate financial statements, 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; provided, that its assets may be included in a division consolidated financial statement of CB, any Originator, its Affiliate so long as appropriate notation shall be made on such consolidated financial statements (if any) to indicate its separateness from such Affiliate and to indicate that its assets and credit are not available to satisfy the Servicer debts and other obligations of such Affiliate or any other Person. Without limiting .
(l) It shall not, except for capital contributions or capital distributions permitted under the generality 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 an arm’s- length transaction.
(m) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(n) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(o) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing and in addition shall not require its equityholders to and consistent with the other covenants set forth herein, the Borrower and the Servicer shall take such actions as shall be required in order that:make additional capital contributions.
(ap) The Borrower will be a limited purpose company whose primary activities are restricted in its operating agreement It shall not make or permit to remain outstanding any loan or advance to: (i) purchasing , or otherwise acquiring from own or acquire any 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 securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity interests of REO Asset Owners.
(“Equity Investments”q) and to exercise all voting rights and other incidents of ownership with respect It shall not, to the Equity Investmentsfullest extent permitted by law, (iv) to use proceeds derived from engage in any dissolution, liquidation, consolidation, merger, sale or ownership transfer of Pool Assets and Equity Investments all or substantially all of its assets other than such activities as determined are expressly permitted pursuant to the Transaction Documents.
(r) It shall not buy or hold evidence of indebtedness issued by the board of directors of the Borrower and permitted any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents, and (v) conducting such other activities as it deems necessary or appropriate to carry out its primary activities;.
(bs) The Borrower shall not engage in any business or activity, or incur any indebtedness or liability (including, without limitation, any assumption or guaranty of any obligation of CB, any Originator or any Affiliate thereof), other than Except as expressly permitted by the Transaction Documents;
Documents (c) Not less than one (1) member which permits, for the avoidance of doubt, the Borrower’s board formation of directors (the “Independent Director”) shall be a natural person (A) who is not at the time of initial appointment and has not been at any time during the five (5) years preceding such appointment: (1) an equityholder, director (other than an independent directorREO Asset Owners), officerit shall not form, employeeacquire or hold any subsidiary (whether corporate, member (other than a special member or similar capacity)partnership, manager (other than an independent manager), attorney or partner of CB, 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; (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, 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 or other) or own any equity interest in any other entity.
(t) It shall not own any asset or property other than Collateral and such other financial assets as permitted by 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 Transaction Documents.
(2u) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. Under this clause (c), the term “control” means the possessionIt shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(v) It shall allocate fairly and reasonably any overhead expenses that are shared with any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(w) Neither the power Borrower nor the Equityholder shall take any action contrary to direct the “Assumptions and Facts” section in the opinion or cause opinions of M▇▇▇▇ & V▇▇ ▇▇▇▇▇ PLLC, dated the direction date hereof, relating to certain nonconsolidation and true sale matters.
(x) Neither the Equityholder 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 management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwiseits Independent Manager. The operating agreement organizational documents of the Borrower shall provide thatinclude the following provisions: (Aa) at all times there shall be, and Borrower shall cause there to be, at least one Independent Manager; (b) the Borrower’s board of directors Borrower shall not approvenot, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Independent Director shall approve the taking of such action in writing before the taking of such action, and (B) such provision cannot be amended without the prior written consent of its 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 Independent Director;
(d) The Independent Director Manager shall not at any time serve as a trustee in bankruptcy for consider only the interests of the Borrower, CB, any Originator, the Servicer or any of their respective Affiliates;
including its creditors; and (ec) 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 no Independent Manager of the Borrower will may be compensated by removed or replaced unless the Borrower for services provided to the Borrower, and to the extent that the Borrower shares the same officers or other employees as CB, the Servicer or any Originator provides Lender with not less than five (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 5) Business Days’ prior written notice of the salary and benefit costs associated with such common officers and employees. The Borrower will not engage any agents other than its attorneys, 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;
(g) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Receivables Pool. The Borrower will pay the Servicer the Servicing Fee pursuant hereto. The Borrower will not incur any material indirect or overhead expenses for items shared with 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 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; it being understood that CB, in its capacity as Servicer, shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legal, agency and other fees;
(h) The Borrower 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 any proposed removal of CBan Independent Manager, together with a statement as to the Servicerreasons for such removal, 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 Affiliate thereof that are consolidated to include the Borrower will disclose that (i) the 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 prior to any assets or value in of Borrower becoming available to of Borrower’s equity holders and (ii) the assets identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower are not available to pay creditors for an Independent Manager. No resignation or removal of CB, the Servicer an Independent Manager shall be effective until a successor Independent Manager is appointed and has accepted his or any Originators or any other Affiliates of CB, the Servicer or any Originators;
(l) The Borrower’s assets will her appointment. No Independent Manager may be maintained in a manner that facilitates their identification and segregation from those of CB, the Servicer, each Originators or any Affiliates thereof;
(m) The Borrower will observe limited liability company formalities in its dealings with CB, the Servicer, any Originators or any Affiliates thereof, and funds or other assets of the Borrower will not be commingled with those of CB, the Servicer, any Originators or any Affiliates thereof except as permitted by this Agreement in connection with servicing the Pool Receivables. The Borrower shall not maintain joint bank accounts or other depository accounts to which CB or any Affiliate thereof (removed other 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;
(n) The Borrower will maintain arm’s-length relationships with CB, the Servicer, any Originators (and any Affiliates thereof). Any Person that renders or otherwise furnishes services to the Borrower will be compensated by the Borrower at market rates for such services it renders or otherwise furnishes to the Borrower. Neither the Borrower on the one hand, nor CB, the Servicer or any 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 Borrower, CB, the Servicer and each Originator will promptly correct any known 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;
(o) [Reserved]; and
(p) To the extent not already covered in paragraphs (a) through (o) above, the Borrower shall comply and/or act in accordance with the provisions of Section 6.4 of the Sale AgreementCause.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Business Development Corp of America)
Separate Existence. The Borrower and the Servicer hereby acknowledge that the Lenders and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Borrower’s identity Operate as a legal entity separate from CB, the Originators and their respective Affiliates. Therefore, from and after the date hereof, the 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 Borrower’s identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of CB, any Originatorof its Affiliates or any Affiliates of the Collateral Manager (and for this purpose, the Servicer Borrower hereby acknowledges that the Administrative Agent and any other Person, and is not a division of CB, any Originator, the Servicer or any other Person. Without limiting the generality each of the foregoing and Lenders are entering into the transactions contemplated by this Agreement in addition to and consistent with reliance upon the other covenants set forth herein, Borrower’s identity as a separate legal entity). The Borrower will not enter into any agreement or understanding between the Borrower and the Servicer shall take such actions Collateral Manager (other than as shall be required expressly set forth herein and in order that:the other Loan Documents) providing for the allocation or sharing of obligations to make payments or otherwise in respect of any Taxes.
(a) The Borrower will be a limited purpose company whose primary activities are restricted in its operating agreement to: will:
(i) purchasing or otherwise acquiring from not own any Originators or CB owning, holding, servicing, granting security interests or selling interests in Pool Assets, property other than (i) the assets that are the subject of the current transaction and (ii) entering into agreements for the selling similar corporate loans with no future funding obligations that have not been either fully funded or completely assumed by third parties (“Subject Assets”) and servicing personal property necessary or incidental to its ownership or operation of the Receivables Pool Subject Assets and will not own engage in any business other than the ownership and operation of the Subject Assets;
(ii) not incur material contingent or for borrowing from banks, financial institutions or similar entities, actual obligations not related to the Subject Assets; and
(iii) accomplish each amendment of its Organization Documents in accordance with the relevant provisions of said Organization Documents prior to purchase, hold and sell common stock or similar equity interests (“Equity Investments”) and its amendment from time 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 (v) conducting such other activities as it deems necessary or appropriate to carry out its primary activities;time.
(b) The Borrower shall will:
(i) not engage enter into any contract or agreement with any Related Party, except the Sale Agreement, the related assignment agreements, the Master Participation Agreement and the other Loan Documents or upon terms and conditions that are commercially reasonable and substantially similar to those available in any business or activity, or incur any indebtedness or liability (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 Documentsan arm’s-length transaction with an unrelated party;
(cii) Not less than one pay all of its debts and liabilities from its assets;
(1iii) member do all things necessary to observe all organizational formalities applicable to it and to preserve its separate existence;
(iv) maintain all of its books, records, financial statements and bank accounts separate from those of any other Person;
(v) not list its assets on the financial statement of any other Person unless (a) financial statements of such other Person contained an appropriate notation indicating the separateness of Borrower from such Person and indicating that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Person and (b) such assets were also listed on the Borrower’s board of directors (the “Independent Director”) shall be a natural person (A) who is not at the time of initial appointment and has not been at any time during the five (5) years preceding such appointment: (1) an equityholder, director (other than an independent director), officer, employee, member (other than a special member or similar capacity), manager (other than an independent manager), attorney or partner of CB, 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; (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, 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 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 (2) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. 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 operating agreement of the Borrower shall provide that: (A) the Borrower’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 Borrower unless the Independent Director shall approve the taking of such action in writing before the taking of such action, and (B) such provision cannot be amended without the prior written consent of the Independent Directorown balance sheet;
(dvi) The Independent Director shall not at any time serve as a trustee in bankruptcy for the Borrower, CB, any Originator, the Servicer or any of their respective Affiliates;
file its own tax returns (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 Borrower will be compensated by the Borrower for services provided to the Borrower, and except to the extent that the Borrower shares the same officers or other employees as CB, the Servicer or any Originator (or any other Affiliate thereofit has been a tax-disregarded entity not required to file tax returns under Applicable Law), 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 Borrower will not engage any agents other than its attorneys, 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;
(gvii) The Borrower will contract with hold itself out to the Servicer to perform for the Borrower all operations required on public as, a daily basis to service the Receivables Pool. The Borrower will pay the Servicer the Servicing Fee pursuant hereto. The Borrower will not incur any material indirect or overhead expenses for items shared with CB, the Servicer or any Originator (or legal entity separate and distinct from any other Affiliate thereof) that are not reflected in the Servicing Fee. To the extent, if any, that the Borrower Person (or including 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; it being understood that CB, in its capacity as Servicer, shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legal, agency and other feesRelated Party);
(hviii) The Borrower shall be responsible for payment or reimbursement of all correct any known misunderstanding regarding its operating expensesstatus as a separate entity;
(iix) The Borrower will conduct all of its business and hold all of its assets in its own name;
(jx) The Borrower’s books and records will be maintained separately from those not identify itself or any of CB, the Servicer, each Originator and any other Affiliate thereof and in its Affiliates as a manner such that it will not be difficult division or costly to segregate, ascertain or otherwise identify the assets and liabilities part of the Borrowerother;
(kxi) All financial statements of CBmaintain and utilize separate stationery, the Servicer or any Originator or any Affiliate thereof that are consolidated to include the Borrower will disclose that (i) the Borrower is a separate legal entity with invoices and checks bearing its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the Borrower’s assets 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 available to pay creditors of CB, the Servicer or any Originators or any other Affiliates of CB, the Servicer or any Originatorsname;
(lxii) The Borrower’s not commingle its assets will be maintained in a manner that facilitates their identification and segregation from with those of CB, the Servicer, each Originators or any Affiliates thereofother Person and hold all of its assets in its own name;
(mxiii) The Borrower will observe limited liability company formalities in its dealings with CB, not guarantee or become obligated for the Servicer, debts of any Originators or any Affiliates thereof, and funds or other assets of the Borrower will not be commingled with those of CB, the Servicer, any Originators or any Affiliates thereof except as permitted by this Agreement in connection with servicing the Pool Receivables. The Borrower shall not maintain joint bank accounts or other depository accounts to which CB or any Affiliate thereof (other 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 thereofPerson that are still outstanding;
(nxiv) The Borrower will maintain arm’s-length relationships with CB, the Servicer, any Originators (and any Affiliates thereof). Any Person that renders or otherwise furnishes services to the Borrower will be compensated by the Borrower at market rates for such services it renders or otherwise furnishes to the Borrower. Neither the Borrower on the one hand, nor CB, the Servicer or any Originator will be or will not hold itself out to be as being responsible for the debts or obligations of the other or the decisions or actions respecting the daily business and affairs of the other. The Borrower, CB, the Servicer and each Originator will promptly correct any known 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 entityPerson that are still outstanding;
(oxv) [Reserved]allocate fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or other Related Party;
(xvi) not pledge its assets to secure the obligations of any other Person that are still outstanding other than as permitted by the Loan Documents;
(xvii) maintain adequate capital in light of its contemplated business operations;
(xviii) maintain a sufficient number of employees (which may be zero) in light of its contemplated business operations and pay the salaries of its own employees from its own funds;
(xix) not own any subsidiary or any equity interest in any other entity and will not be a survivor of a merger with or of any other entities;
(xx) not incur any indebtedness other than indebtedness that is permitted under the Loan Documents; and
(pxxi) To the extent not already covered in paragraphs have any of its obligations guaranteed by an Affiliate, except for guarantees that have been either released or discharged (a) through (o) above, the Borrower shall comply and/or act in accordance with the provisions of Section 6.4 or that will be discharged as a result of the Sale Agreementclosing of the Loan).
Appears in 1 contract
Separate Existence. The Borrower Hereby acknowledge that Trustee and the Servicer hereby acknowledge that the Lenders Noteholders are, and the Administrator are will be, entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Borrower’s Issuer's identity as a legal entity separate from CBeach Seller, the Originators Servicer and their respective Affiliatesany other Person. Therefore, from and after the date hereofof the Original Agreement, the Borrower Issuer has taken and the Servicer shall take all reasonable steps specifically required by this Agreement or reasonably required by the Administrator or any Group Agent to continue the Borrower’s identity maintain its existence as a limited liability company separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct apart from those of CBServicer, any Originator, the Servicer each Seller and any other Person, and is not a division of CB, any Originator, the Servicer or any other ▇▇▇▇▇▇ Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth hereinforegoing, the Borrower and the Servicer Issuer shall take such actions as shall be reasonably required in order that:
(a) The Borrower will be a limited purpose company whose primary activities are restricted in its operating agreement to: (i) purchasing or otherwise acquiring from any 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 Borrower and permitted by the Transaction Documents, and (v) conducting such other activities as it deems necessary or appropriate to carry out its primary activities;
(b) The Borrower shall not engage in any business or activity, or incur any indebtedness or liability (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 (1) member of the Borrower’s board of directors (the “Independent Director”) shall be a natural person (A) who is not at the time of initial appointment and has not been at any time during the five (5) years preceding such appointment: (1) an equityholder, director (other than an independent director), officer, employee, member (other than a special member or similar capacity), manager (other than an independent manager), attorney or partner of CB, 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; (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, 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 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 (2) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. 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 operating agreement of the Borrower shall provide that: (A) the Borrower’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 Borrower unless the Independent Director shall approve the taking of such action in writing before the taking of such action, and (B) such provision cannot be amended without the prior written consent of the Independent Director;
(d) The Independent Director shall not at any time serve as a trustee in bankruptcy for the Borrower, CB, any Originator, the Servicer or any of their respective 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 Borrower will be compensated by the Borrower for services provided to the Borrower, 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 Borrower will not engage any agents other than its attorneys, 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;
(g) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Receivables Pool. The Borrower will pay the Servicer the Servicing Fee pursuant hereto. The Borrower Issuer will not incur any material indirect or overhead expenses for items shared with CB, the Servicer or between Issuer and any Originator (or any other Affiliate thereof) ▇▇▇▇▇▇ Person that are not reflected in the Servicing Fee. To the extent, if any, that the Borrower (or any Affiliate thereof) shares other than shared items of expenses not reflected or covered in the Servicing Fee or the manager’s feeFee, such as legal, auditing and other professional services, such expenses that will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered; , it being understood that CB, in its capacity as Servicer, shall any ▇▇▇▇▇▇ Person will pay all expenses owing by Issuer or any ▇▇▇▇▇▇ Person relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including including, without limitation, legal, commitment, agency and other fees;.
(hii) The Borrower shall be responsible Issuer will account for and manage its liabilities separately from those of every other ▇▇▇▇▇▇ Person, including payment or reimbursement of all payroll administrative expenses and taxes (other than taxes that are determined or required to be determined on a consolidated or combined basis) from its operating expenses;own assets.
(iiii) The Borrower Issuer will conduct its business in its own name;at an office segregated from the offices of each ▇▇▇▇▇▇ Person, which office of Issuer may consist of office space shared with a ▇▇▇▇▇▇ Person, a portion of which is allocated solely to Issuer.
(jiv) The Borrower’s Issuer will maintain company records, books of account and records will be maintained separately stationery separate from those of CB, 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;every ▇▇▇▇▇▇ Person.
(kv) All Any annual financial statements of CB, the Servicer or any Originator or any Affiliate thereof ▇▇▇▇▇▇ Person that are made publicly available and which are consolidated to include the Borrower Issuer will disclose contain footnotes stating that (i) the Borrower is a separate legal entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out ▇▇▇▇▇▇ and certain Subsidiaries of the Borrower’s assets prior to any assets or value in of Borrower becoming available to of Borrower’s equity holders ▇▇▇▇▇▇ have sold Receivables and (ii) indicating that the assets of the Borrower are Issuer will not be available to pay creditors of CB, ▇▇▇▇▇▇ or such Subsidiaries unless the Servicer or any Originators or any other Affiliates of CB, the Servicer or any Originators;Secured Obligations have been paid in full.
(lvi) The Borrower’s Issuer's assets will be maintained in a manner that facilitates their identification and segregation from those of CB, the Servicer, each Originators or any Affiliates thereof;▇▇▇▇▇▇ Person.
(mvii) The Borrower will observe limited liability company formalities in its dealings with CB, the Servicer, any Originators or any Affiliates thereof, and funds or other assets of the Borrower will not be commingled with those of CB, the Servicer, any Originators or any Affiliates thereof except as permitted by this Agreement in connection with servicing the Pool Receivables. The Borrower Issuer shall not maintain joint bank accounts or other depository accounts to which CB or any Affiliate thereof (other 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 namednot, directly or indirectly, be named and shall not enter into an agreement to be named 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;a ▇▇▇▇▇▇ Person.
(nviii) The Borrower will maintain arm’s-length relationships with CB, the Servicer, any Originators (Any transaction between Issuer and any Affiliates thereof). Any ▇▇▇▇▇▇ Person will be the type of transaction which would be entered into by a prudent Person in the position of Issuer with a ▇▇▇▇▇▇ Person, and will be on terms that are at least as favorable as may be obtained from a Person that renders or otherwise furnishes services to is not a ▇▇▇▇▇▇ Person (it being understood and agreed that the Borrower will be compensated by transactions contemplated in the Borrower at market rates for such services it renders or otherwise furnishes to Transaction Documents meet the Borrower. requirements of this clause).
(ix) Neither the Borrower Issuer, on the one hand, nor CBany ▇▇▇▇▇▇ Person, on the Servicer or any Originator other hand, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily other.
(x) Issuer will operate, conduct its business and affairs otherwise act in a manner which is consistent with the factual assumptions in each of the other. The Borrower, CB, opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP dated the Servicer date hereof regarding certain substantive consolidation and each Originator will promptly correct any known 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;
(o) [Reserved]; and
(p) To the extent not already covered in paragraphs (a) through (o) above, the Borrower shall comply and/or act in accordance with the provisions of Section 6.4 of the Sale Agreementtrue sale issues.
Appears in 1 contract
Separate Existence. The Borrower and the Servicer hereby acknowledge that the Lenders and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Borrower’s identity as a legal entity Such Originator shall at all times:
(i) maintain its own deposit account or accounts, separate from CB, the Originators and their respective Affiliates. Therefore, from and after the date hereof, the 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 Borrower’s identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of CBMRFC, with commercial banking institutions and ensure that the funds of such Originator will not be diverted by Metaldyne or any of its Subsidiaries to MRFC or for other than corporate or limited liability company uses of such Originator, the Servicer and any nor will such funds or other Person, and is not a division assets of CB, any Originator, the Servicer or any other Person. Without limiting the generality of the foregoing and in addition to and consistent such Originator be commingled with the funds or other covenants set forth herein, the Borrower and the Servicer shall take such actions as shall be required in order that:assets of MRFC;
(a) The Borrower will be a limited purpose company whose primary activities are restricted in its operating agreement to: (i) purchasing or otherwise acquiring from any Originators or CB owning, holding, servicing, granting security interests or selling interests in Pool Assets, (ii) entering into agreements for to the selling extent that it shares the same officers or other employees with MRFC, the salaries of and servicing the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such Originator and MRFC, and each such entity shall bear its fair share of the Receivables Pool or for borrowing from banks, financial institutions or similar entities, salary and benefit costs associated with all such common officers and employees;
(iii) to purchasethe extent that it jointly contracts with MRFC to do business with vendors or service providers or to share overhead expenses, hold the costs incurred in so doing shall be allocated fairly among such Originator and sell common stock MRFC, and each such entity shall bear its fair share of such costs. To the extent that the Originator contracts or similar equity interests (“Equity Investments”) does business with venders or service providers where the goods and services provided are partially for the benefit of MRFC, the costs incurred in so doing shall be fairly allocated to exercise all voting rights or among such Originator and other incidents MRFC for whose benefit the goods or services are provided, and each such entity shall bear its fair share of ownership with respect to the Equity Investments, such costs;
(iv) at all times limit its transactions with MRFC only to use proceeds derived from sale those expressly permitted hereunder or ownership under any Related Document or, in the case of Pool Assets and Equity Investments as determined by the board of directors of the Borrower and permitted by the Transaction DocumentsMetalydyne Company LLC, and those incidental to its parent-subsidiary relationship with MRFC;
(v) conducting maintain office space separate from the office space of MRFC (but which may be located at the same address as MRFC) and, to the extent that the Originator and MRFC have offices in the same location, there shall be a fair and appropriate allocation of overhead costs among them, and each such other activities as it deems necessary or appropriate to carry out entity shall bear its primary activitiesfair share of such expenses;
(bvi) The Borrower shall issue separate financial statements prepared not engage less frequently than quarterly and prepared in any business or activity, or incur any indebtedness or liability (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 Documentsaccordance with GAAP consistently applied;
(cvii) Not less than one (1) member of the Borrower’s board of directors (the “Independent Director”) shall be a natural person (A) who is not at the time of initial appointment and has not been at any time during the five (5) years preceding such appointment: (1) an equityholder, director (other than an independent director), officer, employee, member (other than a special member or similar capacity), manager (other than an independent manager), attorney or partner of CB, 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; (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, 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 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 (2) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. 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 operating agreement of the Borrower shall provide that: (A) the Borrower’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 Borrower unless the Independent Director shall approve the taking of such action in writing before the taking of such action, and (B) such provision cannot be amended without the prior written consent of the Independent Director;
(d) The Independent Director shall not at any time serve as a trustee in bankruptcy for the Borrower, CB, any Originator, the Servicer or any of their respective Affiliates;
(e) The Borrower shall conduct its affairs strictly in accordance with its organizational documents Charter Documents, and observe all necessary, appropriate and customary corporate or limited liability company formalities, as the case may be, including, but not limited to, holding all regular and special members’ and board meetings of directors’ meetings stockholders, directors and/or members appropriate to authorize all corporate or limited liability company action, keeping separate separate, complete 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;
(fviii) Any employee, consultant not assume or agent guarantee any of the Borrower will liabilities of MRFC;
(ix) take, or refrain from taking, as the case may be, all other actions that are necessary to be compensated by the Borrower for services provided taken or not to the Borrowerbe taken in order to comply with (x) this Section 4.02(u), and (y) ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct with respect to it (and, to the extent within its control, to ensure that the Borrower shares the same officers or other employees as CB, the Servicer or any Originator (or any other Affiliate thereofsuch remain true and correct with respect to MRFC), 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 Borrower will not engage any agents other than its attorneys, 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;
(gx) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Receivables Pool. The Borrower will pay the Servicer the Servicing Fee pursuant hereto. The Borrower will not incur any material indirect or overhead expenses for items shared with 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 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; it being understood that CB, in its capacity as Servicer, shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legal, agency and other fees;
(h) The Borrower 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 CB, 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 each Originator or any Affiliate thereof that are consolidated to include the Borrower will shall disclose that (iA) MRFC’s sole business consists of the Borrower purchase or acceptance through capital contribution of the Receivables from the Originators and the subsequent resale of such Receivables to the Purchasers, (B) MRFC is a separate legal entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the BorrowerMRFC’s assets prior to any assets or value in of Borrower MRFC becoming available to of BorrowerMRFC’s equity holders and (iiC) the assets of the Borrower MRFC are not available to pay creditors of CB, the Servicer or any Originators or any other Affiliates of CB, the Servicer or any OriginatorsMetaldyne Group Member;
(lxi) The Borrowermaintain an arm’s-length relationship with MRFC (it being agreed that the Related Documents satisfy this arm’s length standard) and shall not hold itself out as being liable for the Debts of MRFC;
(xii) keep its assets will be maintained and its liabilities wholly separate from those of MRFC and maintain its assets in a manner that facilitates their separate identification and segregation from those of CB, the Servicer, each Originators or any Affiliates thereofMRFC;
(mxiii) The Borrower will observe limited liability company formalities conduct its business solely in its dealings with CB, own name through its duly Authorized Officers or agents and in a manner designed not to mislead third parties as to the Servicer, separate identity of MRFC;
(xiv) not conduct or appear to conduct business on behalf of MRFC or expressly or implicitly representing or suggesting that any Originators Metaldyne Group Member is liable or any Affiliates thereof, and funds responsible for the Debts of MRFC or other that the assets of any Metaldyne Group Member are available to pay the Borrower will creditors of MRFC;
(xv) not be commingled with those of CB, the Servicer, any Originators name MRFC or any Affiliates thereof except as permitted by this Agreement in connection with servicing the Pool Receivables. The Borrower shall not maintain joint bank accounts or other depository accounts to which CB or any Affiliate thereof (other than CB in its capacity as the Servicer) has independent access. The Borrower is not named, and has not entered enter into any agreement to be named, directly or indirectly, as name MRFC a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the covering property of CB, any Originators or any Subsidiaries or other Affiliates thereofsuch Originator;
(nxvi) The Borrower will maintain arm’s-length relationships with CB, the Servicer, not pay any Originators (operating expenses and any Affiliates thereof). Any Person liabilities of MRFC and otherwise ensure that renders or otherwise furnishes services to the Borrower will be compensated by the Borrower at market rates for all such services it renders or otherwise furnishes to the Borrower. Neither the Borrower on the one hand, nor CB, the Servicer or any 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 expenses and affairs of the other. The Borrower, CB, the Servicer and each Originator will promptly correct any known 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;
(o) [Reserved]liabilities are paid from MRFC’s own funds; and
(pxvii) To the extent not already covered in paragraphs (a) through (o) above, the Borrower shall comply and/or act in accordance with the provisions maintain stationery and other business forms and a mailing address and telephone number separate from those of Section 6.4 of the Sale AgreementMRFC.
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Separate Existence. The Borrower Each of Seller and the Servicer hereby acknowledge acknowledges and agrees that the Lenders Purchasers and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Borrower’s Seller's identity as a legal entity separate from CB, Feed and the Originators and their respective Affiliatesother Originators. Therefore, from and after the date hereof, the Borrower each of Seller and the Servicer shall take all steps specifically required by this Agreement or reasonably required by the Required Purchasers or the Administrator or any Group Agent to continue the Borrower’s Seller's identity as a separate legal entity and to make it apparent to third Persons that the Borrower Seller is an entity with assets and liabilities distinct from those of CB, any Originator, Feed and the Servicer other Originators and any other Person, and is not a division of CBany Feed, any Originator, the Servicer other 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, the Borrower Seller and the Servicer shall take such actions as shall be required in order that:
(a) The Borrower Seller will be a limited purpose limited liability company whose primary activities are restricted in its operating agreement to: (i) certificate of formation to purchasing or otherwise acquiring from any Originators or CB Originators, owning, holding, servicing, granting security interests interests, or selling interests 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 Borrower and permitted by the Transaction DocumentsPool, and (v) 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 Borrower Seller shall not engage in any business or activity, or incur any indebtedness or liability (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) 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 (1) member of the Borrower’s board Seller's Board of directors (the “Independent Director”) Managers shall be a natural person (A) who is not at the time of initial appointment and has not been at any time during the five (5) years preceding such appointment: (1) an equityholder, director (other than an independent director), officer, employee, member (other than a special member or similar capacity), manager (other than an independent manager), attorney or partner of CB, 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; (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, 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 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 (2) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. 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 otherwiseIndependent Manager. The operating agreement certificate of the Borrower formation of Seller shall provide that: that (Ai) the Borrower’s board Seller's Board of directors 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 Borrower Seller unless the Independent Director Manager shall approve the taking of such action in writing before prior to the taking of such action, action and (Bii) such provision cannot be amended without the prior written consent of the Independent DirectorManager;
(de) The Independent Director Manager shall not at any time serve as a trustee in bankruptcy for the BorrowerSeller, CBFeed, any Originator, the Servicer other Originator or any of their respective 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 accountsother Affiliate thereof;
(f) Any employee, consultant or agent of the Borrower Seller will be compensated by the Borrower from Seller's funds for services provided to the Borrower, 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 employeesSeller. The Borrower Seller will not engage any agents other than its attorneys, 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 Servicer will be fully compensated for its services by payment of the Servicing Fee, Servicer's Fee and a manager, which manager will be fully compensated from the Borrower’s Seller's funds;
(g) The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service the Receivables Pool. The Borrower will pay the Servicer the Servicing Fee pursuant hereto. The Borrower Seller will not incur any material indirect or overhead expenses for items shared with CB, the Servicer or any Originator 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 Borrower Seller (or any other Affiliate thereof) shares items of expenses not reflected or covered 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; , it being understood that CB, in its capacity as Servicer, Feed shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legalincluding, agency without limitation, legal and other fees;
(h) The Borrower 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 Feed, any other Originator or any Affiliate thereof. Seller shall be responsible 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 payment or reimbursement its allocable portions of all its operating any shared expenses;
(i) The Borrower 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 namename 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) The Borrower’s Seller 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 will be maintained separately from those of CB, the Servicer, each Originator account 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 minutes of the Borrowermeetings and other proceedings of its members and the Board of Managers;
(k) Seller will maintain separate financial statements from the Originators. All financial statements of CBLOL, the Servicer or any Originator Feed or any Affiliate thereof that are consolidated Consolidated to include the Borrower Seller will contain appropriate footnotes or will otherwise disclose that (iA) the Borrower 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 entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the Borrower’s assets prior to any assets or value have received security interests in of Borrower becoming available to of Borrower’s equity holders and (ii) the assets of the Borrower are not available to pay creditors of CB, the Servicer or any Originators or any other Affiliates of CB, the Servicer or any OriginatorsSeller's assets;
(l) The Borrower’s Seller's assets will be maintained in a manner that facilitates their identification and segregation from those of CBFeed, the Servicer, each Originators any other Originator or any Affiliates other Affiliate thereof;
(m) The Borrower Seller will strictly observe limited liability company corporate formalities in its dealings with CBFeed, the Servicer, any other Originators or any Affiliates thereof, and funds or other assets of the Borrower Seller will not be commingled with those of CB, the ServicerFeed, any Originators other Originator or any Affiliates thereof except as permitted by this Agreement in connection with servicing the Pool ReceivablesAffiliate thereof. The Borrower Seller shall not maintain joint bank accounts or other depository accounts to which CB Feed, any other Originator or any Affiliate thereof (other than CB Feed 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;
(n) The Borrower Seller will maintain arm’s-length arms'-length relationships with CBFeed, the Servicer, any Originators (each other Originator and any Affiliates Affiliate thereof). Any Person that renders or otherwise furnishes services to the Borrower Seller will be compensated by the Borrower Seller at market rates for such services it renders or otherwise furnishes to the BorrowerSeller. Neither the Borrower on the one handSeller nor Feed will guaranty, nor CB, the Servicer or assume any Originator 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 Borrower, CB, the Servicer Seller and each Originator Feed will promptly immediately correct any known 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
(o) [Reserved]; and
Seller (pi) To will act solely in its own name and through its duly authorized officers or agents in the extent not already covered 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 (iii) will have and utilize its own invoices and letterhead separate from any Originator. Without limiting the foregoing, Feed and Seller agree to take all actions necessary to ensure that the corporate separateness assumptions, statements and representations set forth in paragraphs (a) through (o) above, the Borrower Exhibit 7.4 attached hereto are and shall comply and/or act in accordance with the provisions of Section 6.4 of the Sale Agreementat all times remain true and correct.
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