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Common use of Certain Undertakings Relating to Separateness Clause in Contracts

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, provided that the Borrower may be consolidated with the BDC solely for tax and accounting purposes. (2) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts), and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (5) The Borrower has observed, and shall observe all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (6) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except as permitted by or pursuant to the Facility Documents. (7) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDC. (8) The Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral Manager, its Affiliates or any other Person. (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16) The Borrower shall make no transfer of its assets except as permitted by or pursuant to the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of its members. (19) The Borrower shall use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar in all material respects to those in effect on the Closing Date. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 6 contracts

Samples: Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp), Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp), Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp)

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Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any holders of its Affiliates, the BDC Equity Interests of the Borrower and their respective Affiliates) and in furtherance of the foregoing, the Borrower shall: (1) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those not become involved in the day-to-day management of any other Person, provided that the Borrower may be consolidated with the BDC solely for tax and accounting purposes.; (2) The Borrower shall not commingle permit the Parent or pool any of the Parent’s Affiliates to become involved in the day-to-day management of the Borrower, except as permitted hereunder or to the extent provided in the Facility Documents and the Borrower LLC Agreement; (3) not engage in transactions with any other Person other than entering into the Facility Documents and those activities permitted by the Borrower LLC Agreement, the Facility Documents and matters necessarily incident or ancillary thereto; (4) observe all formalities required of a limited liability company under the laws of the State of Delaware; (5) (i) maintain separate company records and books of account from any other Person and (ii) clearly identify its funds or offices, if any, as its offices and, to the extent that the Borrower and its Affiliates have offices in the same location, allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including and for services performed by an employee of an Affiliate; (6) except to the extent otherwise permitted by the Facility Documents, maintain its assets with those separately from the assets of any Affiliate or any other Person (other than as expressly contemplated herein with respect to including through the Excluded Amounts), and it shall hold all maintenance of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3a separate bank account) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (5) The Borrower has observed, and shall observe all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (6) The Borrower shall is not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except as permitted by or pursuant to the Facility Documents. (7) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDC. (8) The Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, identify or ascertain such assets; (7) maintain separate financial statements (or identify its individual assets if part of a consolidated group, then it will show as a separate member of such group), books and records from those of any Affiliate or any other Person.; (8) allocate and charge fairly and reasonably any overhead shared with Affiliates; (9) transact all business with Affiliates on an arm’s length basis and pursuant to written, enforceable agreements, except to the extent otherwise provided in the Facility Documents; (10) The Borrower shall not use its separate existence assume, pay or guarantee any other Person’s obligations or advance funds to perpetrate a fraud in violation any other Person for the payment of Applicable Law. (11) The Borrower shall notexpenses or otherwise, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13) Except as permitted by or except pursuant to the Facility Documents, ; (11) conduct all business correspondence of the Borrower shall and other communications in the Borrower’s own name, and use separate stationery, invoices, and checks; (12) not grant a security interest or otherwise pledge its assets for the benefit act as an agent of any other Person.Person in any capacity except pursuant to contractual documents indicating such capacity and only in respect of transactions permitted by the Borrower LLC Agreement, the Facility Documents and matters necessarily incident thereto; (13) not act as an agent of the Parent or any of the Parent’s Affiliates, and not permit the Parent or any of the Parent’s Affiliates or agents of the Parent or any of the Parent’s Affiliates to act as its agent, except for any agent to the extent permitted under the Borrower LLC Agreement and the Facility Documents; (14) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral Manager, its Affiliates or any other Person. (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16) The Borrower shall make no transfer of its assets except as permitted by or pursuant to the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of its members. (19) The Borrower shall use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its the Borrower’s separate identity.identity from the Parent or any of the Parent’s Affiliates; (2115) The not permit any Affiliate of the Borrower shall to guarantee, provide indemnification for, or pay its obligations, except for any indemnities and guarantees in connection with any Facility Documents or any consolidated tax liabilities, or except as permitted by the Borrower LLC Agreement; (16) compensate its consultants or agents, if any, from its own funds; (17) except for invoicing for Collections and servicing of the Collateral Receivables, share any common logo with or hold itself out as or be considered as a department of the Parent or any of the Parent’s Affiliates, (b) any Affiliate of a general partner, shareholder, principal or member of the Parent or any of the Parent’s Affiliates, or (c) any other Person; (18) maintain adequate capital in light of its contemplated business operations.purpose, transactions and liabilities; (19) fail at any time to have at least one (1) Independent Manager on its board of managers; provided, however, if such Independent Manager is deceased, withdraws or resigns, the Borrower shall have ten (10) Business Days to replace such Independent Manager with another Independent Manager acceptable to the Administrative Agent; provided, further, however, that during such period, no matter which requires the vote of the Independent Manager under the Borrower LLC Agreement shall be voted; (20) appoint any Person as an Independent Manager of the Borrower (A) who does not satisfy the definition of an Independent Manager or (B), with respect to any Independent Manager appointed after the Closing Date, without giving ten (10) Business Days’ prior written notice to the Administrative Agent and the Lenders; (21) not amend, restate, supplement or otherwise modify its Constituent Documents in violation of this Agreement or in any respect that would impair its ability to comply with the Facility Documents; (22) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar conduct its business and activities in all material respects to those in effect compliance with the assumptions contained in the legal opinions of Xxxxxx Xxxxxxx & Xxxxxxx LLP and Blake, Xxxxxxx & Xxxxxxx LLP dated on or about the Closing Date.Date relating to true sale and substantive consolidation issues (the “Bankruptcy Opinions”), unless within ten (10) Business Days of obtaining knowledge or receiving notice of any non-compliance with such assumptions, it has caused to be delivered to the Lenders a legal opinion of Xxxxxx Xxxxxxx & Xxxxxxx LLP or Blake, Xxxxxxx & Xxxxxxx LLP (or other counsel acceptable to the Administrative Agent) that such non-compliance will not adversely affect the conclusions set forth in the Bankruptcy Opinions; and (23) The require any representatives of the Borrower shall to act at all times conduct its business so that any assumptions made with respect to the Borrower consistently and in any “substantive non-consolidation” opinion letter delivered furtherance of the foregoing. (b) The Borrower hereby acknowledges that the Administrative Agent and each Lender is entering into the transactions contemplated by this Agreement in connection with reliance upon the Facility Documents will continue to be true and correct in all material respectsBorrower’s identity as a legal entity that is separate from its Affiliates.

Appears in 5 contracts

Samples: Revolving Credit and Security Agreement (Sezzle Inc.), Revolving Credit and Security Agreement (Sezzle Inc.), Revolving Credit and Security Agreement (Sezzle Inc.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, Collateral Manager and Equityholder contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its bank accounts, financial statements, books, accounting and other records, and other Borrower documents records separate from those of any other Person, provided except that the accounts of the Borrower may be included in the consolidated with financial statements of the BDC solely for tax and accounting purposesEquityholder as required by GAAP or Applicable Law. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4c) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided that the Borrower may share overhead expenses with another Person so long as such expenses are allocated fairly and reasonably between the Borrower and such other Person. (5d) The Borrower has observed, and shall observe observe, in all material respects all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence. (e) The Borrower shall have at least one (1) Independent Director at all times; (it being understood that the Borrower shall not be in violation of the requirement to have at least one (1) Independent Director after the earlier of an Independent Director resigning or becoming deceased, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate incapacitated or any other Person to, amend, modify or otherwise change its limited liability company agreement in disabled so long as a manner that would adversely affect the existence new Independent Director is appointed within thirty (30) days after a Responsible Officer of the Borrower as a bankruptcy-remote special purpose entityhas actual knowledge or receives written notice thereof). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except Person, except, in each case, as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal and economic entity separate and distinct from any other Person, shall not identify itself as a division of any other Person and shall correct any known misunderstanding regarding its separate identity; provided that the assets assets, liabilities and operating results of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCEquityholder as required by GAAP or Applicable Law. (8) The Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10h) The Borrower shall not use seek its separate existence to perpetrate a fraud dissolution or winding up in violation whole or in part or divide or permit any division of Applicable Lawthe Borrower. (11i) The Any transaction between the Borrower and its Affiliates shall notbe on arm’s-length terms; provided that the foregoing (i) shall not apply to the execution, in connection with delivery and performance of the Facility Documents, act with an intent the Borrower’s Constituent Documents, (ii) shall not prohibit the Borrower from making Restricted Payments permitted under Section 5.02(r) and (iii) shall not prohibit the Equityholder from transferring Collateral Assets, Cash or other assets to hinder, delay the Borrower in whole or defraud any of its creditors in violation of Applicable Lawpart as a capital contribution to the Borrower. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13j) Except as permitted by or pursuant to provided in the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14k) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral ManagerEquityholder, its Affiliates or any other PersonPerson (except for equity interests in Obligors in connection with the exercise of any remedies with respect to a Collateral Asset or any exchange offer, work-out or restructuring of a Collateral Asset). (15l) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans Assets and as permitted by or pursuant to the Facility Documents. (16m) The Borrower shall make no transfer of its assets Collateral Assets, except as permitted by or pursuant to the Facility Documents. (17n) The Borrower shall file its own tax returns separate from those of any other Person or entityTax returns, except if any, as may be required under Applicable Law, to the extent that the Borrower is (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a disregarded entity separate from its sole owner of another taxpayer for Tax purposes, within the meaning of Treasury Regulation Section 301.7701-3 and pay any Taxes so required to file tax returns be paid by it under applicable law or is not permitted to file its own tax returns separate from those of any Applicable Law (other Personthan Taxes which are being contested in good faith and by proper proceedings and against which adequate reserves are being maintained in accordance with GAAP). (18o) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21p) The Borrower shall maintain adequate capital in light of its contemplated business operations; provided, however, that the foregoing shall not require the Equityholder to make capital contributions to the Borrower. (22q) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its Constituent Documents in all material respects to those in effect on a manner that would adversely affect the Closing Dateexistence of the Borrower as a bankruptcy-remote special purpose entity. (23r) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “true sale” and “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct, but solely to the extent that said opinion letters expressly require such assumptions to remain true and correct at all times in all material respectsorder for such letters’ underlying opinions to be valid.

Appears in 5 contracts

Samples: Amendment No. 2 to Facility Documents (Blue Owl Technology Income Corp.), Credit and Security Agreement (Blue Owl Credit Income Corp.), Credit and Security Agreement (Blue Owl Technology Income Corp.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, the Equityholder and the Servicer contained in this Agreement, the Borrower (the Servicer in acting on behalf or for the benefit of the Borrower and the Equityholder in acting on behalf of the Borrower as the equityholder in the Borrower) shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager Equityholder and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, ; provided that the Borrower may be consolidated with into the BDC Equityholder solely for tax and accounting purposes. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of the Servicer, the Equityholder or any Affiliate of their Affiliates or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3c) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any PersonPerson (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder). (4d) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided, however, in its capacity as Servicer, Blackstone/GSO Secured Lending Fund may from time to time advance expenses of the Borrower for which Blackstone/GSO Secured Lending Fund is later reimbursed pursuant to the Priority of Payments. (5e) The Borrower has observed, and shall observe observe, all (A) limited liability company corporate formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existenceexistence (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder), and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company operating agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. The Borrower shall have at least one Independent Manager at all times (subject to the time periods for replacement of Independent Managers that have resigned or have been removed set forth in the Borrower’s Constituent Documents). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person Person, except as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person (although, in connection with certain financial reporting, advertising and marketing, it may be identified as a subsidiary of the Equityholder); provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCEquityholder as required by GAAP or applicable law. (8) h) The Borrower shall not identify itself as a division of any other Person. (9i) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10j) The Borrower shall not use its separate existence to perpetrate a fraud Except as may be provided in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any transaction between the Borrower and any of its creditors in violation of Applicable Lawthe Servicer, the Equityholder and their Affiliates shall be on arm’s length terms. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13k) Except as permitted by by, or pursuant to to, the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other PersonPerson (other than its pledge of the Collateral hereunder to the Collateral Agent for the benefit of the Secured Parties). (14l) Except as provided in the Facility Documents, the The Borrower shall not acquire any securities or debt instruments of the Collateral ManagerEquityholder, its the Servicer, any Affiliates of the foregoing or any other PersonPerson (except for equity interests in Obligors in connection with the exercise of any remedies with respect to a Collateral Loan or any exchange offer, work-out or restructuring of a Collateral Loan). (15m) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16n) The Borrower shall make no transfer of its assets Collateral Loans, except as permitted by or pursuant to the Facility Documents. (17o) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law Applicable Law or is not permitted to file its own tax returns separate from those of any other Person. (18p) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20q) The Borrower shall correct any known misunderstanding regarding its separate identity. (21r) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22s) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents Constituent Documents substantially similar in all material respects to those in effect on the Closing Date. (23t) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 5 contracts

Samples: Revolving Credit and Security Agreement (Blackstone Secured Lending Fund), Revolving Credit and Security Agreement (Blackstone Secured Lending Fund), Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its bank accounts, financial statements, books, accounting and other records, and other Borrower documents records separate from those of any other Person, provided that the Borrower may be consolidated with the BDC solely for tax and accounting purposes. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4c) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided that the Borrower may share overhead expenses with another Person so long as such expenses are allocated fairly and reasonably between the Borrower and such other Person. (5d) The Borrower has observed, and shall observe observe, in all material respects all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (6e) The Borrower shall have at least one (1) Independent Manager at all times. (f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except Person, except, in each case, as expressly permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal and economic entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDC. (8) The Borrower Person, shall not identify itself as a division of any other PersonPerson and shall correct any known misunderstanding regarding its separate identity. (9h) The Any transaction between the Borrower and its Affiliates shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Personon arm’s-length terms. (10) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13i) Except as permitted by or pursuant to expressly provided in the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14j) Except as expressly provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral ManagerEquityholder, its Affiliates or any other PersonPerson (except for equity interests in Obligors in connection with the exercise of any remedies with respect to a Collateral Loan or any exchange offer, work-out or restructuring of a Collateral Loan). (15k) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16l) The Borrower shall make no transfer of its assets Collateral Loans, except as expressly permitted by or pursuant to the Facility Documents. (17m) The Borrower shall file its own tax returns separate from those of any other Person or entityTax returns, except if any, as may be required under Applicable Law, to the extent that the Borrower is (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a disregarded entity separate from its sole owner of another taxpayer for Tax purposes, within the meaning of Treasury Regulation Section 301.7701-3 and pay any Taxes so required to file tax returns be paid under applicable law or is not permitted to file its own tax returns separate from those of any other PersonApplicable Law. (18n) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21o) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22p) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its Constituent Documents in all material respects to those in effect on a manner that would adversely affect the Closing Dateexistence of the Borrower as a bankruptcy-remote special purpose entity. (23q) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects, except to the extent that any such change in assumptions would not reasonably be expected to result in a reputable and nationally recognized counsel no longer to be able to render such “substantive non-consolidation” opinion letter. (r) The Borrower shall not fail to provide that the unanimous consent of all managers (including the consent of the Borrower’s Independent Manager) required for the Borrower to (a) institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Borrower, (e) make any assignment for the benefit of the Borrower’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing.

Appears in 4 contracts

Samples: Credit and Security Agreement (Saratoga Investment Corp.), Credit and Security Agreement (Saratoga Investment Corp.), Credit and Security Agreement (Saratoga Investment Corp.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager Manager, the Fund and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1) The Borrower shall maintain its bank accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, provided that the Borrower may be consolidated with the BDC solely for tax and accounting purposes. (2) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall have at least one Independent director. The Borrower shall not take any action that would result in an Insolvency Event with respect to the Borrower unless all of the members of the Borrower shall have consented in writing to such action. (4) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any PersonPerson (although, in connection with certain advertising, filings and marketing, the Borrower may be identified as a subsidiary of the Fund). (45) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (56) The Borrower shall maintain or procure the maintenance of separate financial statements (if any), including such monthly and quarterly reports as are required by the Facility Documents except to the extent that the financial statements of the Borrower may be consolidated with those of the Fund, provided that appropriate notations shall be made on such financial statements to indicate the separateness of the Borrower from the Fund and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such other Person. (7) The Borrower has observed, and shall observe all (A) limited liability company formalities and (B) other organizational applicable Delaware corporate formalities, in each case to the extent necessary or advisable to preserve shall comply with its separate existenceConstituent Documents, and shall preserve its existence. (8) The Borrower does not, and it shall not, nor shall it permit so long as any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect Obligation is outstanding under the existence of the Borrower as a bankruptcy-remote special purpose entity. (6) The Borrower shall not Facility Documents (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person Person, in each case, except as permitted by or pursuant to the Facility Documents. (79) The Borrower shall, at all times, pay the salaries of its own employees, if any, and maintain a sufficient number of employees in light of its contemplated business operations. (10) The Borrower shall allocate fairly and reasonably any overhead for shared office space. (11) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCPerson. (8) 12) The Borrower shall not identify itself as a division of any other PersonPerson (although, in connection with certain advertising, filings and marketing, the Borrower may be identified as a subsidiary of the Fund). (913) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (1014) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Law. (11) The Borrower shall not, in connection with Except as permitted by this Agreement and the other Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12) The the Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral ManagerManager and the Fund. (1315) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (1416) Except So long as any obligations of the Borrower are outstanding under the Facility Documents, except as provided in the Facility Documents, the Borrower shall not acquire any stock, securities or debt instruments of the Collateral Manager, its Affiliates or any other Person, except that the Borrower may invest in those investments (and purchase assets from, and sell assets to, its Affiliates as) permitted under the Facility Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Facility Documents and permit the same to remain outstanding in accordance with such provisions. (1517) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and Obligations or as permitted by or pursuant to the Facility Documents. (1618) The So long as any Obligations are outstanding under the Facility Documents, to the fullest extent permitted by law, the Borrower shall make no transfer not (i) engage in any dissolution, liquidation, or winding-up, in whole or in part, or consolidation or merger with or into any other business entity, (ii) acquire by purchase or otherwise all or substantially all of the business or assets of or beneficial interest in any other entity, (iii) transfer, lease or sell, in one transaction or any combination of transactions, all or substantially all of its assets properties or assets, or (iv) terminate its organizational documents or its qualifications and good standing in any jurisdiction, in each case except as expressly permitted by or pursuant to the Facility Documents. (1719) The Borrower shall file its own tax returns separate from those of any other Person or entityPerson, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (1820) The Borrower shall not acquire obligations or securities of its membersequity holders. (1921) The Borrower shall use separate stationerystationary, invoices and checkschecks (although, in connection with certain advertising, filings and marketing, the Borrower may be identified as a subsidiary of the Fund). (2022) The Borrower shall correct any known misunderstanding regarding its separate identity. (2123) The Borrower shall intend to maintain adequate capital in light of its contemplated business operations. (2224) The Borrower shall not, so long as any obligations are outstanding under the Facility Documents, engage, directly or indirectly, in any business other than the actions required or permitted under this Agreement or the other Facility Documents or ancillary thereto. (25) The Borrower shall not, so long as any obligations are outstanding under the Facility Documents, incur, create or assume any indebtedness other than as expressly permitted under the Facility Documents. (26) The Borrower shall not, so long as any obligations are outstanding under the Facility Documents, except as contemplated by the Facility Documents, form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other). (27) The Borrower shall not, so long as any obligations are outstanding under the Facility Documents, fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation. (28) The Borrower shall not, so long as any obligations are outstanding under the Facility Documents, except as contemplated by the Facility Documents, enter into any contract or agreement with any Affiliate, except upon terms and conditions that are commercially reasonable and substantially similar to those that would be available on an arm’s-length basis with third parties other than such Person. (29) The Borrower shall at all times be organized as a special special-purpose entity limited liability company with organizational documents substantially similar in all material respects to those in effect on the Closing Date. (2330) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 4 contracts

Samples: Credit and Security Agreement (TCW Direct Lending VIII LLC), Credit and Security Agreement (TCW Direct Lending VII LLC), Credit and Security Agreement (TCW Direct Lending VII LLC)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, the Equityholder and the Investment Advisor contained in this Agreement, the Borrower (the Investment Advisor in acting on behalf or for the benefit of the Borrower and the Equityholder in acting on behalf of the Borrower as the equityholder in the Borrower) shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager Equityholder and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, ; provided that the Borrower may be consolidated with into the BDC Equityholder solely for tax and accounting purposes. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of the Investment Advisor, the Equityholder or any Affiliate of their Affiliates or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3c) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any PersonPerson (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder). (4d) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided, however, in its capacity as Investment Advisor, Xxxxxxx Xxxxx Private Credit Corp. may from time to time advance expenses of the Borrower for which Xxxxxxx Xxxxx Private Credit Corp. is later reimbursed pursuant to the Priority of Payments. (5e) The Borrower has observed, and shall observe observe, all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existenceexistence (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder), and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement Constituent Documents in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. The Borrower shall have at least one Independent Manager at all times (subject to the time period for replacement of Independent Managers that have died, been incapacitated, resigned or have been removed as set forth in the Borrower’s Constituent Documents). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person Person, except as permitted by or pursuant to the Facility Documents or (B) control the decisions or actions respecting the daily business or affairs of any other Person Person, except as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person (although, in connection with certain financial reporting, advertising and marketing, it may be identified as a subsidiary of the Equityholder); provided that the assets and liabilities of the Borrower may be consolidated into the BDC for tax and accounting purposes and included in consolidated financial statements of the BDCEquityholder and/or the Investment Advisor as required by GAAP or applicable law. (8) h) The Borrower shall not identify itself as a division of any other Person. (9i) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral Manager, its Affiliates or any other Person. (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16) The Borrower shall make no transfer of its assets except as permitted by or pursuant to the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of its members. (19) The Borrower shall use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar in all material respects to those in effect on the Closing Date. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 3 contracts

Samples: Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.), Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.), Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its Affiliates, the BDC holders of the Equity and their respective Affiliates) and in furtherance of the foregoing: (1) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, provided that the Borrower may be consolidated with into the BDC solely for tax and accounting purposes. (2) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (5) The Borrower has observed, and shall observe all (A) Delaware limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (6) The Borrower shall not not, (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except as permitted by or pursuant to the Facility Documents. (7) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated publicly filed financial statements of the BDC. (8) The Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral Manager, its Affiliates or any other Person. (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16) The Borrower shall make no transfer of its assets except as permitted by or pursuant to the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of its members. (19) The Borrower shall use separate stationerystationary, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents substantially similar in all material respects to those in effect on the Closing Date. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 3 contracts

Samples: Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.), Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.), Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its Affiliates, the BDC holders of the Equity and their respective Affiliates) and in furtherance of the foregoing: (1) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, provided that the Borrower may be consolidated with into the BDC solely for tax and accounting purposes. (2) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (5) The Borrower has observed, and shall observe all (A) Delaware limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (6) The Borrower shall not not, (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except as permitted by or pursuant to the Facility Documents. (7) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated publicly filed financial statements of the BDC. (8) The Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral Manager, its Affiliates or any other Person. (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16) The Borrower shall make no transfer (including by dividing into two or more separate limited liability companies) of its assets except as permitted by or pursuant to the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of its members. (19) The Borrower shall use separate stationerystationary, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents substantially similar in all material respects to those in effect on the Closing Date. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 3 contracts

Samples: Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.), Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.), Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any holders of its Affiliates, the BDC Equity Interests of the Borrower and their respective Affiliates) and in furtherance of the foregoing, the Borrower shall: (1) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those not become involved in the day-to-day management of any other Person, provided that the Borrower may be consolidated with the BDC solely for tax and accounting purposes.; (2) The Borrower shall not commingle permit the Parent or pool any of the Parent’s Affiliates to become involved in the day-to-day management of the Borrower, except as permitted hereunder or to the extent provided in the Facility Documents and the Borrower LLC Agreement; (3) not engage in transactions with any other Person other than entering into the Facility Documents and those activities permitted by the Borrower LLC Agreement, the Facility Documents and matters necessarily incident or ancillary thereto; (4) observe all formalities required of a limited liability company under the laws of the State of Delaware; (5) (i) maintain separate company records and books of account from any other Person and (ii) clearly identify its funds or offices, if any, as its offices and, to the extent that the Borrower and its Affiliates have offices in the same location, allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including and for services performed by an employee of an Affiliate; (6) except to the extent otherwise permitted by the Facility Documents, maintain its assets with those separately from the assets of any Affiliate or any other Person (other than as expressly contemplated herein with respect to including through the Excluded Amounts), and it shall hold all maintenance of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3a separate bank account) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (5) The Borrower has observed, and shall observe all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (6) The Borrower shall is not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except as permitted by or pursuant to the Facility Documents. (7) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDC. (8) The Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, identify or ascertain such assets; (7) maintain separate financial statements (or identify its individual assets if part of a consolidated group, then it will show as a separate member of such group), books and records from those of any Affiliate or any other Person.; (8) allocate and charge fairly and reasonably any overhead shared with Affiliates; (9) transact all business with Affiliates on an arm’s length basis and pursuant to written, enforceable agreements, except to the extent otherwise provided in the Facility Documents; (10) The Borrower shall not use its separate existence assume, pay or guarantee any other Person’s obligations or advance funds to perpetrate a fraud in violation any other Person for the payment of Applicable Law. (11) The Borrower shall notexpenses or otherwise, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13) Except as permitted by or except pursuant to the Facility Documents, ; (11) conduct all business correspondence of the Borrower shall and other communications in the Borrower’s own name, and use separate stationery, invoices, and checks; (12) not grant a security interest or otherwise pledge its assets for the benefit act as an agent of any other Person.Person in any capacity except pursuant to contractual documents indicating such capacity and only in respect of transactions permitted by the Borrower LLC Agreement, the Facility Documents and matters necessarily incident thereto; (13) not act as an agent of the Parent or any of the Parent’s Affiliates, and not permit the Parent or any of the Parent’s Affiliates or agents of the Parent or any of the Parent’s Affiliates to act as its agent, except for any agent to the extent permitted under the Borrower LLC Agreement and the Facility Documents; (14) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral Manager, its Affiliates or any other Person. (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16) The Borrower shall make no transfer of its assets except as permitted by or pursuant to the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of its members. (19) The Borrower shall use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its the Borrower’s separate identity.identity from the Parent or any of the Parent’s Affiliates; (2115) The not permit any Affiliate of the Borrower shall to guarantee, provide indemnification for, or pay its obligations, except for any indemnities and guarantees in connection with any Facility Documents or any consolidated tax liabilities, or except as permitted by the Borrower LLC Agreement; (16) compensate its consultants or agents, if any, from its own funds; (17) except for invoicing for Collections and servicing of the Collateral Receivables, share any common logo with or hold itself out as or be considered as a department of the Parent or any of the Parent’s Affiliates, (b) any Affiliate of a general partner, shareholder, principal or member of the Parent or any of the Parent’s Affiliates, or (c) any other Person; (18) maintain adequate capital in light of its contemplated business operations.purpose, transactions and liabilities; (19) fail at any time to have at least one (1) Independent Manager on its board of managers; provided, however, if such Independent Manager is deceased, withdraws or resigns, the Borrower shall have ten (10) Business Days to replace such Independent Manager with another Independent Manager acceptable to the Administrative Agent; provided, further, however, that during such period, no matter which requires the vote of the Independent Manager under the Borrower LLC Agreement shall be voted; (20) appoint any Person as an Independent Manager of the Borrower (A) who does not satisfy the definition of an Independent Manager or (B), with respect to any Independent Manager appointed after the Closing Date, without giving ten (10) Business Days’ prior written notice to the Administrative Agent and the Lenders; (21) not amend, restate, supplement or otherwise modify its Constituent Documents in violation of this Agreement or in any respect that would impair its ability to comply with the Facility Documents; (22) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar conduct its business and activities in all material respects to those in effect compliance with the assumptions contained in the legal opinions of Xxxxxx Xxxxxxx & Xxxxxxx LLP and Blake, Xxxxxxx & Xxxxxxx LLP dated on or about the Closing Date.Date relating to true sale and substantive consolidation issues (the “Bankruptcy Opinions”), unless within ten (10) Business Days of obtaining knowledge or receiving notice of any non-compliance with such assumptions, it has caused to be delivered to the Lenders a legal opinion of Xxxxxx Xxxxxxx & Xxxxxxx LLP or Xxxxx, Xxxxxxx & Xxxxxxx LLP (or other counsel acceptable to the Administrative Agent) that such non-compliance will not adversely affect the conclusions set forth in the Bankruptcy Opinions; and (23) The require any representatives of the Borrower shall to act at all times conduct its business so that any assumptions made with respect to the Borrower consistently and in any “substantive non-consolidation” opinion letter delivered furtherance of the foregoing. (b) The Borrower hereby acknowledges that the Administrative Agent and each Lender is entering into the transactions contemplated by this Agreement in connection with reliance upon the Facility Documents will continue to be true and correct in all material respectsBorrower’s identity as a legal entity that is separate from its Affiliates.

Appears in 3 contracts

Samples: Revolving Credit and Security Agreement (Sezzle Inc.), Revolving Credit and Security Agreement (Sezzle Inc.), Revolving Credit and Security Agreement, Limited Guaranty and Indemnity Agreement, Servicing Agreement (Sezzle Inc.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, the Equityholder and the Servicer contained in this Agreement, the Borrower (the Servicer in acting on behalf or for the benefit of the Borrower and the Equityholder in acting on behalf of the Borrower as the equityholder in the Borrower) shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager Equityholder and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, ; provided that the Borrower may be consolidated with into the BDC Equityholder solely for tax and accounting purposes. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of the Servicer, the Equityholder or any Affiliate of their Affiliates or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3c) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any PersonPerson (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder). (4d) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided, however, in its capacity as Servicer, BPCC may from time to time advance expenses of the Borrower for which BPCC is later reimbursed pursuant to the Priority of Payments. (5e) The Borrower has observed, and shall observe observe, all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existenceexistence (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder), and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company operating agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. The Borrower shall have at least one Independent Manager at all times (subject to the time periods for replacement of Independent Managers that have resigned or have been removed set forth in the Borrower’s Constituent Documents). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person Person, except as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person (although, in connection with certain financial reporting, advertising and marketing, it may be identified as a subsidiary of the Equityholder); provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCEquityholder and/or the Servicer as required by GAAP or applicable law. (8) h) The Borrower shall not identify itself as a division of any other Person. (9i) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10j) The Borrower shall not use its separate existence to perpetrate a fraud Except as may be provided in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any transaction between the Borrower and any of its creditors in violation of Applicable Lawthe Servicer, the Equityholder and their Affiliates shall be on arm’s length terms. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13k) Except as permitted by by, or pursuant to to, the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other PersonPerson (other than its pledge of the Collateral hereunder to the Collateral Agent for the benefit of the Secured Parties). (14l) Except as provided in the Facility Documents, the The Borrower shall not acquire any securities or debt instruments issued by the Equityholder, the Servicer, any Affiliates of the Collateral Manager, its Affiliates foregoing or any other PersonPerson (except (i) in connection with the receipt of equity securities with respect to a Collateral Loan, an Eligible Investment or any exchange offer, work-out or restructuring of a Collateral Loan, (ii) equity interests in any Tax Blocker Subsidiary or (iii) the Collateral Loans). (15m) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16n) The Borrower shall make no transfer of its assets Collateral Loans, except as permitted by or not prohibited by or pursuant to the Facility Documents. (17o) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law Applicable Law or is not permitted to file its own tax returns separate from those of any other Person. (18p) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20q) The Borrower shall correct any known misunderstanding regarding its separate identity. (21r) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22s) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents Constituent Documents substantially similar in all material respects to those in effect on the Closing Date. (23t) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 2 contracts

Samples: Revolving Credit and Security Agreement (Barings Private Credit Corp), Revolving Credit and Security Agreement (Barings Private Credit Corp)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager BDCA and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its accounts, financial statementsstatements (which may be consolidated for accounting purposes and included in the consolidated financial statements of its equityholders or the Collateral Manager as required by GAAP or applicable law), books, accounting and other records, and other Borrower documents records separate from those of any other Person, provided that the Borrower may be consolidated with the BDC solely for tax and accounting purposes. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4c) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (5d) The Borrower has observed, and shall observe in all material respects all (A) Delaware limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company operating agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (6e) The Borrower shall have at least one Independent Manager at all times. (f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person Person, except as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person, shall not identify itself as a division of any other Person and shall correct any known misunderstanding regarding its separate identity; provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of its equityholders or the BDCCollateral Manager as required by GAAP or applicable law. (8) The Borrower shall not identify itself as a division of any other Person. (9h) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12i) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral ManagerAffiliates. (13j) Except as permitted by or pursuant to provided in the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14k) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral Manager, its Affiliates or any other PersonPerson (except for equity interests in Obligors in connection with the exercise of any remedies with respect to a Collateral Loan or any exchange offer, work-out or restructuring of a Collateral Loan). (15l) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16m) The Borrower shall make no transfer of its assets Collateral Loans, except as permitted by or pursuant to the Facility Documents. (17n) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law Applicable Law or is not permitted to file its own tax returns separate from those of any other Person. (18o) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21p) The Borrower shall maintain adequate capital in light of its contemplated business operations; provided, however, that the foregoing shall not require the Equityholder to make additional capital contributions. (22q) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents Constituent Documents substantially similar in all material respects to those in effect on the Closing Date. (23r) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 2 contracts

Samples: Credit and Security Agreement (Business Development Corp of America), Credit and Security Agreement (Business Development Corp of America)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, Collateral Manager and Equityholder contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its bank accounts, financial statements, books, accounting and other records, and other Borrower documents records separate from those of any other Person, provided except that the accounts of the Borrower may be included in the consolidated with financial statements of the BDC solely for tax and accounting purposesEquityholder as required by GAAP or Applicable Law. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4c) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided that the Borrower may share overhead expenses with another Person so long as such expenses are allocated fairly and reasonably between the Borrower and such other Person. (5d) The Borrower has observed, and shall observe observe, in all material respects all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence. (e) The Borrower shall have at least one (1) Independent Director at all times; (it being understood that the Borrower shall not be in violation of the requirement to have at least one (1) Independent Director after the earlier of an Independent Director resigning or becoming deceased, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate incapacitated or any other Person to, amend, modify or otherwise change its limited liability company agreement in disabled so long as a manner that would adversely affect the existence new Independent Director is appointed within thirty (30) days after a Responsible Officer of the Borrower as a bankruptcy-remote special purpose entityhas actual knowledge or receives written notice thereof). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except Person, except, in each case, as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal and economic entity separate and distinct from any other Person, shall not identify itself as a division of any other Person and shall correct any known misunderstanding regarding its separate identity; provided that the assets assets, liabilities and operating results of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCEquityholder as required by GAAP or Applicable Law. (8) The Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10h) The Borrower shall not use seek its separate existence to perpetrate a fraud dissolution or winding up in violation whole or in part or divide or permit any division of Applicable Lawthe Borrower. (11i) The Any transaction between the Borrower and its Affiliates shall notbe on arm’s-length terms; provided that the foregoing (i) shall not apply to the execution, in connection with delivery and performance of the Facility Documents or the Borrower’s Constituent Documents, act with an intent (ii) shall not prohibit the Borrower from making Restricted Payments permitted under Section 5.02(r) and (iii) shall not prohibit the Equityholder from transferring Collateral Assets, Cash or other assets to hinder, delay the Borrower in whole or defraud any of its creditors in violation of Applicable Lawpart as a capital contribution to the Borrower. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13j) Except as permitted by or pursuant to provided in the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14k) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral ManagerEquityholder, its Affiliates or any other PersonPerson (except for equity interests in Obligors in connection with the exercise of any remedies with respect to a Collateral Asset or any exchange offer, work-out or restructuring of a Collateral Asset). (15l) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans Assets and as permitted by or pursuant to the Facility Documents. (16m) The Borrower shall make no transfer of its assets Collateral Assets, except as permitted by or pursuant to the Facility Documents. (17n) The Borrower shall file its own tax returns separate from those of any other Person or entityTax returns, except if any, as may be required under Applicable Law, to the extent that the Borrower is (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a disregarded entity separate from its sole owner of another taxpayer for Tax purposes, within the meaning of Treasury Regulation Section 301.7701-3 and pay any Taxes so required to file tax returns be paid by it under applicable law or is not permitted to file its own tax returns separate from those of any Applicable Law (other Personthan Taxes which are being contested in good faith and by proper proceedings and against which adequate reserves are being maintained in accordance with GAAP). (18o) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21p) The Borrower shall maintain adequate capital in light of its contemplated business operations; provided, however, that the foregoing shall not require the Equityholder to make capital contributions to the Borrower. (22q) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its Constituent Documents in all material respects to those in effect on a manner that would adversely affect the Closing Dateexistence of the Borrower as a bankruptcy-remote special purpose entity. (23r) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “true sale” and “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct, but solely to the extent that said opinion letters expressly require such assumptions to remain true and correct at all times in all material respectsorder for such letters’ underlying opinions to be valid.

Appears in 2 contracts

Samples: Credit and Security Agreement (Diameter Credit Co), Credit and Security Agreement (Diameter Credit Co)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, Collateral Manager and Equityholder contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its bank accounts, financial statements, books, accounting and other records, and other Borrower documents records separate from those of any other Person, provided except that the accounts of the Borrower may be included in the consolidated with financial statements of the BDC solely for tax and accounting purposesEquityholder as required by GAAP or Applicable Law. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4c) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided that the Borrower may share overhead expenses with another Person so long as such expenses are allocated fairly and reasonably between the Borrower and such other Person. (5d) The Borrower has observed, and shall observe observe, in all material respects all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence. (e) The Borrower shall have at least one (1) Independent Director at all times; (it being understood that the Borrower shall not be in violation of the requirement to have at least one (1) Independent Director after the earlier of an Independent Director resigning or becoming deceased, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate incapacitated or any other Person to, amend, modify or otherwise change its limited liability company agreement in disabled so long as a manner that would adversely affect the existence new Independent Director is appointed within thirty (30) days after a Responsible Officer of the Borrower as a bankruptcy-remote special purpose entityhas actual knowledge or receives written notice thereof). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except Person, except, in each case, as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal and economic entity separate and distinct from any other Person, shall not identify itself as a division of any other Person and shall correct any known misunderstanding regarding its separate identity; provided that the assets assets, liabilities and operating results of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCEquityholder as required by GAAP or Applicable Law. (8) The Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10h) The Borrower shall not use seek its separate existence to perpetrate a fraud dissolution or winding up in violation whole or in part or divide or permit any division of Applicable Lawthe Borrower. (11i) The Any transaction between the Borrower and its Affiliates shall notbe on arm’s-length terms; provided that the foregoing (i) shall not apply to the execution, in connection with delivery and performance of the Facility Documents, act with an intent the Borrower’s Constituent Documents, (ii) shall not prohibit the Borrower from making Restricted Payments permitted under Section 5.02(r) and (iii) shall not prohibit the Equityholder from transferring Collateral Loans, Cash or other assets to hinder, delay the Borrower in whole or defraud any of its creditors in violation of Applicable Lawpart as a capital contribution to the Borrower. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13j) Except as permitted by or pursuant to provided in the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14k) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral ManagerEquityholder, its Affiliates or any other PersonPerson (except for equity interests in Obligors in connection with the exercise of any remedies with respect to a Collateral Loan or any exchange offer, work-out or restructuring of a Collateral Loan). (15l) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16m) The Borrower shall make no transfer of its assets Collateral Loans, except as permitted by or pursuant to the Facility Documents. (17n) The Borrower shall file its own tax returns separate from those of any other Person or entityTax returns, except if any, as may be required under Applicable Law, to the extent that the Borrower is (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a disregarded entity separate from its sole owner of another taxpayer for Tax purposes, within the meaning of Treasury Regulation Section 301.7701-3 and pay any Taxes so required to file tax returns be paid by it under applicable law or is not permitted to file its own tax returns separate from those of any Applicable Law (other Personthan Taxes which are being contested in good faith and by proper proceedings and against which adequate reserves are being maintained in accordance with GAAP). (18o) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21p) The Borrower shall maintain adequate capital in light of its contemplated business operations; provided, however, that the foregoing shall not require the Equityholder to make capital contributions to the Borrower. (22q) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its Constituent Documents in all material respects to those in effect on a manner that would adversely affect the Closing Dateexistence of the Borrower as a bankruptcy-remote special purpose entity. (23r) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “true sale” and “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct, but solely to the extent that said opinion letters expressly require such assumptions to remain true and correct at all times in all material respectsorder for such letters’ underlying opinions to be valid.

Appears in 2 contracts

Samples: Credit and Security Agreement (Apollo Debt Solutions BDC), Credit and Security Agreement (Blackstone Private Credit Fund)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, Collateral Manager and Equityholder contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its bank accounts, financial statements, books, accounting and other records, and other Borrower documents records separate from those of any other Person, provided except that the accounts of the Borrower may be included in the consolidated with financial statements of the BDC solely for tax and accounting purposesEquityholder as required by GAAP or applicable law. (2b) The Borrower Borrower, Collateral Manger and the Equityholder shall not commingle or pool any of its their funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it each shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3c) The Borrower shall conduct its own business in its own name andEach of the Borrower, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4) The Borrower the Collateral Manager and the Equityholder shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided that the Borrower, the Collateral Manager and the Equityholder may share overhead expenses with another Person so long as such expenses are allocated fairly and reasonably between the Borrower, the Collateral Manager and the Equityholder and such other Person. (5d) The Borrower has observed, and shall observe observe, in all material respects all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (6e) The Borrower shall have at least one (1) Independent Manager at all times. (f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except Person, except, in each case, as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal and economic entity separate and distinct from any other Person, shall not identify itself as a division of any other Person and shall correct any known misunderstanding regarding its separate identity; provided that the assets assets, liabilities and operating results of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCEquityholder as required by GAAP or applicable law. (8) The h) Any transaction between the Borrower and its Affiliates shall not identify itself as a division of any other Personbe on arm’s-length terms. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13i) Except as permitted by or pursuant to provided in the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14j) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral ManagerEquityholder, its Affiliates or any other PersonPerson (except for equity interests in Obligors in connection with the exercise of any remedies with respect to a Collateral Loan or any exchange offer, work-out or restructuring of a Collateral Loan). (15k) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16l) The Borrower shall make no transfer of its assets Collateral Loans, except as permitted by or pursuant to the Facility Documents. (17m) The Borrower shall file its own tax returns separate from those of any other Person or entityTax returns, except if any, as may be required under applicable law, to the extent that the Borrower is (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a disregarded entity separate from its sole owner of another taxpayer for Tax purposes, within the meaning of Treasury Regulation Section 301.7701-3 and pay any Taxes so required to file tax returns be paid under applicable law or is not permitted to file its own tax returns separate from those of any other PersonApplicable Law. (18n) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21o) The Borrower shall maintain adequate capital in light of its contemplated business operations; provided, however, that the foregoing shall not require the Equityholder to make additional capital contributions. (22p) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its Constituent Documents in all material respects to those in effect on a manner that would adversely affect the Closing Dateexistence of the Borrower as a bankruptcy-remote special purpose entity. (23q) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “true sale” and “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects, but solely to the extent that said opinion letters expressly require such assumptions to remain true and correct at all times in order for such letters’ underlying opinions to be valid.

Appears in 2 contracts

Samples: Credit and Security Agreement (CION Investment Corp), Credit and Security Agreement (CION Investment Corp)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager Seller and any of its Affiliates, and the BDC holders of the Equity Interests of the Seller and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, provided that the Borrower may be consolidated with into the BDC Seller or other Affiliate solely for tax and accounting purposes. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, in each case except as otherwise permitted permitted, contemplated or required under by the terms of the Facility Documents. (3c) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4d) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided, that such expenses may be settled by an intercompany administrative payment of $50,000 annually or such other amount agreed by the Borrower and the Seller; provided, further, that the Seller may pay certain start-up and related upfront expenses in connection with the establishment of the Facility Documents on behalf of the Borrower. (5e) The Borrower has observed, and shall observe all (A) limited liability company organizational formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its the limited liability company agreement of the Borrower in a manner that would adversely affect the existence of the Borrower as a bankruptcybankruptcy remote special-remote special purpose entity. (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person Person; provided that the assets of the Borrower may be consolidated into the BDC Seller for accounting purposes and included in consolidated publicly filed financial statements of the BDCSeller. (8) h) The Borrower shall not identify itself as a division of any other Person. (9i) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10j) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Law. (11k) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12l) The Borrower shall maintain an arm’s length relationship with its Affiliates Affiliates, the Seller, the Parent and the Collateral ManagerServicer. (13m) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14n) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral ManagerSeller, its Affiliates or any other Person. (15o) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16p) The Borrower shall make no transfer of its assets except as permitted by or pursuant to the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of its members. (19) The Borrower shall use separate stationery, invoices and checks. (20q) The Borrower shall correct any known misunderstanding regarding its separate identity. (21r) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22s) The Borrower shall at all times be organized as a special special-purpose entity with organizational documents substantially similar in all material respects to those in effect on the Closing Date. (23t) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 2 contracts

Samples: Revolving Credit and Security Agreement (Compass, Inc.), Revolving Credit and Security Agreement (Compass, Inc.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its Affiliates, the BDC Equity Owners and their respective Affiliates) and in furtherance of the foregoing: (1) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other PersonPerson (without limiting the foregoing, provided it is acknowledged that for accounting purposes, the Borrower may be consolidated with the BDC solely for tax another Person as required by GAAP and accounting purposesincluded in such Person's consolidated financial statements). (2) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person (except as may be required for U.S. federal income tax purposes and except for accounting purposes and Investment Company Act purposes, the Borrower may be consolidated with another Person as required by GAAP and included in such Person's consolidated financial statements). (4) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (5) The Borrower has observed, and shall observe all (A) Delaware limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entityentity without the prior written consent of the Required Lenders. (6) The Borrower does not, and shall not not, (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except as permitted by or pursuant to the Facility Documents. (7) The Except for income tax and consolidated accounting purposes, the Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCPerson. (8) The Except for income tax purposes, the Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Lawapplicable law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Lawapplicable law. (12) The Except as permitted by this Agreement and the other Facility Documents, the Borrower shall maintain an arm’s 's length relationship with its Affiliates and the Collateral Manager. (13) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral Manager, its Affiliates or any other Person. (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans Obligations and as permitted by or pursuant to the Facility Documents. (16) The Borrower shall make no transfer of its assets except as permitted by or pursuant to the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of issued by its members. (19) The Borrower shall use separate stationerystationary, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21) The Borrower shall intend to maintain adequate capital in light of its contemplated business operations. (22) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents substantially similar in all material respects to those in effect on the Original Closing DateDate together with any amendments or modifications thereto as permitted thereunder. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any "substantive non-consolidation" opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 2 contracts

Samples: Credit and Security Agreement (WhiteHorse Finance, Inc.), Credit and Security Agreement (WhiteHorse Finance, Inc.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, the Equityholder and the Collateral Manager contained in this Agreement, the Borrower (the Collateral Manager in acting on behalf or for the benefit of the Borrower and the Equityholder in acting on behalf of the Borrower as the equityholder in the Borrower) shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager Equityholder and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, ; provided that the Borrower may be consolidated with into the BDC Equityholder solely for tax and accounting purposes. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of the Collateral Manager, the Equityholder or any Affiliate of their Affiliates or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3c) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any PersonPerson (although, in connection with certain financial reporting (if any), regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder). (4d) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided, however, in its capacity as Collateral Manager, HPS Corporate Lending Fund may from time to time advance expenses of the Borrower for which HPS Corporate Lending Fund is later reimbursed pursuant to the Priority of Payments. (5e) The Borrower has observed, and shall observe observe, all (A) limited liability company partnership formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existenceexistence (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder), and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company operating agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. The General Partner shall have at least one Independent Manager at all times (subject to the time periods for replacement of Independent Managers that have resigned or have been removed set forth in the General Partner’s Constituent Documents). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person Person, except as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person (although, in connection with certain financial reporting (if any), advertising and marketing, it may be identified as a subsidiary of the Equityholder); provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCEquityholder and/or the Collateral Manager as required by GAAP or applicable law. (8) h) The Borrower shall not identify itself as a division of any other Person. (9i) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10j) The Borrower shall not use its separate existence to perpetrate a fraud Except as may be provided in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any transaction between the Borrower and any of its creditors in violation of Applicable Lawthe Collateral Manager, the Equityholder and their Affiliates shall be on arm’s length terms. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13k) Except as permitted by by, or pursuant to to, the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other PersonPerson (other than its pledge of the Collateral hereunder to the Collateral Agent for the benefit of the Secured Parties). (14l) Except as provided in the Facility Documents, the The Borrower shall not acquire any securities or debt instruments of issued by the Equityholder, the Collateral Manager, its any Affiliates of the foregoing or any other PersonPerson (except (i) in connection with the receipt of equity securities with respect to a Collateral Loan, an Eligible Investment or any exchange offer, work-out or restructuring of a Collateral Loan, (ii) equity interests in any Tax Blocker Subsidiary or (iii) the Collateral Loans). (15m) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16n) The Borrower shall make no transfer of its assets Collateral Loans, except as permitted by or not prohibited by or pursuant to the Facility Documents. (17o) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law Applicable Law or is not permitted to file its own tax returns separate from those of any other Person. (18p) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20q) The Borrower shall correct any known misunderstanding regarding its separate identity. (21r) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22s) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents Constituent Documents substantially similar in all material respects to those in effect on the Closing Date. (23t) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 2 contracts

Samples: Credit Agreement (HPS Corporate Lending Fund), Revolving Credit and Security Agreement (HPS Corporate Lending Fund)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, since its formation, the Borrower has conducted and the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its AffiliatesManager, the BDC Logan Ridge and their respective Affiliates) and in furtherance of the foregoing: (1) The Borrower has and shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, provided that the Borrower may be consolidated with the BDC solely for tax and accounting purposes. (2) The Borrower has not and shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, has and it shall hold all of its assets solely in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower has conducted and shall conduct its own business solely in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person; provided that this clause (3) shall not bind the Borrower’s position for U.S. federal or state or local income tax purposes. (4) The Borrower has paid and shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (5) The Borrower has observed, and shall observe all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (6) The Borrower has not and shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except as permitted by or pursuant to the Facility Documents. (7) The Borrower has held and shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCPerson. (8) The Borrower has not and shall not identify itself as a division of any other Person; provided that this clause (8) shall not bind the Borrower’s position for U.S. federal or state or local income tax purposes. (9) The Borrower has and shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12) The Borrower has and shall maintain an arm’s length relationship with its Affiliates and Logan Ridge, and the Collateral ManagerBorrower has only entered into and shall only enter into a contract or agreement with any member, principal or Affiliate of the Borrower or any manager, member, principal or Affiliate thereof, in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable and substantially similar to those that would be available on an arm’s-length basis with third parties. (13) Except as permitted by or pursuant to the Facility DocumentsDocuments to secure its own obligations, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14) Except as provided in the Facility Documents, the The Borrower has not and shall not acquire any securities or debt instruments of the Collateral ManagerLogan Ridge, its Affiliates or any other Person. (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16) The Borrower shall make no transfer of its assets except as permitted by or pursuant to the Facility Documents. (17) The Borrower has filed and shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Personlaw. (18) The Borrower has not and shall not acquire obligations or securities of its members. (19) The Borrower has and shall use separate stationery, invoices and checkschecks bearing its own name. (20) The Borrower has and shall correct any known misunderstanding regarding its separate identity. (21) The Borrower shall intend to maintain adequate capital in light of its contemplated business operations. (22) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar in all material respects to those in effect on the Closing Dateentity. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to has not listed and the Borrower shall not list its assets as assets on the financial statement of any other Person; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate provided that (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any “substantive non-consolidation” opinion letter delivered other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet. (24) The Borrower has maintained, and the Borrower shall maintain a sufficient number of employees (if any) in connection light of its contemplated business operations, it being understood that as of the date hereof, the Borrower does not require employees in the operation of its assets. (25) The Borrower has paid and shall pay the salaries of its own employees, if any, from its own funds. (26) The Borrower has allocated, and the Borrower shall allocate fairly and reasonably shared expenses with the Facility Documents will continue to be true and correct in all material respectsAffiliates (including, without limitation, shared office space).

Appears in 2 contracts

Samples: Revolving Credit and Security Agreement (Logan Ridge Finance Corp.), Revolving Credit and Security Agreement (Logan Ridge Finance Corp.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager WEIL:\99621584\14\35899.0654 Servicer and any of its Affiliates, and the BDC holders of the Equity Interests of the Servicer and their respective its Affiliates) and in furtherance of the foregoing: (1i) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, provided that the Borrower may be consolidated with into the BDC Parent solely for tax and accounting purposes. (2ii) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, in each case except as otherwise permitted permitted, contemplated or required under by the terms of the Facility Documents. (3iii) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4iv) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided, that the Parent may pay certain start-up and related upfront expenses in connection with the establishment of the Facility Documents on behalf of the Borrower. (5v) The Borrower has observed, and shall observe all (A) limited liability company organizational formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement Constituent Documents in a manner that would adversely affect the existence of the Borrower as a bankruptcybankruptcy remote special-remote special purpose entity. (6vi) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except as expressly permitted by or pursuant to the Facility Documents. (7vii) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person and, to the fullest extent permitted by law, shall not merge into or consolidate with any Person, dissolve or terminate in whole or in part, liquidate, transfer or otherwise dispose of all or substantially all of its assets, change its legal structure, engage in a division (whether pursuant to a plan of division or otherwise) or permit any transfer of any of its direct ownership interests, except as permitted by the Facility Documents; provided that the assets of the Borrower may be consolidated into the BDC Parent for accounting purposes and included in consolidated publicly filed financial statements of the BDCParent. (8) viii) The Borrower shall not identify itself as a division of any other Person.. WEIL:\99621584\14\35899.0654 (9ix) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10x) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Law. (11xi) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12xii) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral ManagerServicer and cause all business transactions entered into by it with any of its Affiliates or the Servicer to be on terms that are commercially reasonable and are not more or less favorable to it, as the case may be, than terms and conditions available at the time to it for comparable arm’s-length transactions with unaffiliated Persons. (13xiii) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14xiv) Except as provided in the Facility Documents, the The Borrower shall not acquire any securities or debt instruments of the Collateral ManagerServicer, its Affiliates or any other PersonPerson or own any material assets other than the Collateral Receivables and related assets, any assets acquired by it pursuant to the Facility Documents and any incidental property as may be necessary for its operation. (15xv) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16xvi) The Borrower shall make no transfer of its assets except as permitted by or pursuant to the Facility Documents. (17xvii) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law Applicable Law or is not permitted to file its own tax returns separate from those of any other Person. (18xviii) The Borrower shall not acquire obligations or securities of its members. (19) The Borrower shall use separate stationery, invoices and checks. (20xix) The Borrower shall correct any known misunderstanding regarding its separate identity. (21xx) The Borrower shall maintain adequate capital in light of its contemplated business operations.. WEIL:\99621584\14\35899.0654 (22xxi) The Borrower shall at all times be organized as a special special-purpose entity with organizational documents substantially similar in all material respects to those in effect on the Closing Date. (23xxii) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects. (xxiii) The Borrower shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) except as permitted under the Facility Documents. (xxiv) The Borrower shall maintain separate office space and/or allocate fairly and reasonably any overhead for office spare shared with any other Person. (xxv) The Borrower shall use invoices and checks bearing its own name (or under any name licensed pursuant to any trademark license or similar agreement) through which all business correspondence and communication are conducted separate from those of any other Person. (xxvi) The Borrower shall pay the salaries, if any, of its own directors, consultants, agents and employees from its own funds for services provided to it by such persons, if any. (xxvii) The Borrower shall cause its directors, officers, agents and other representatives to act at all times with respect to it consistently and in furtherance of the foregoing.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (ACV Auctions Inc.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its AffiliatesManager, the BDC Capitala and their respective Affiliates) and in furtherance of the foregoing: (1) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, provided that the Borrower may be consolidated with the BDC Capitala solely for tax and accounting purposes. (2) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts), and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person; provided that this clause (3) shall not bind the Borrower’s position for U.S. federal income tax purposes. (4) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (5) The Borrower has observed, and shall observe all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (6) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except as permitted by or pursuant to the Facility Documents. (7) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC Capitala for tax and accounting purposes and included in consolidated financial statements of the BDCCapitala. (8) The Borrower shall not identify itself as a division of any other Person; provided that this clause (8) shall not bind the Borrower’s position for U.S. federal income tax purposes. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12) The Except as permitted by or pursuant to the Facility Documents, the Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral ManagerCapitala. (13) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral ManagerCapitala, its Affiliates or any other Person. (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16) The Borrower shall make no transfer of its assets except as permitted by or pursuant to the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of its members. (19) The Borrower shall use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity; provided that this clause (20) shall not bind the Borrower’s position for U.S. federal income tax purposes. (21) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar in all material respects to those in effect on the Closing Dateentity. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (Capitala Finance Corp.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, the Collateral Manager and the Equityholder contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its bank accounts, financial statements, books, accounting and other records, and other Borrower documents records separate from those of any other Person, provided except that the accounts of the Borrower may be included in the consolidated with financial statements of the BDC solely for tax and accounting purposesEquityholder as required by GAAP or Applicable Law. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4c) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided that the Borrower may share overhead expenses with another Person so long as such expenses are allocated fairly and reasonably between the Borrower and such other Person. (5d) The Borrower has observed, and shall observe observe, in all material respects all applicable (A) limited partnership and limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence. (e) The Borrower shall have at least one (1) Independent Director at all times; (it being understood that the Borrower shall not be in violation of the requirement to have at least one (1) Independent Director after the earlier of an Independent Director resigning or becoming deceased, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate incapacitated or any other Person to, amend, modify or otherwise change its limited liability company agreement in disabled so long as a manner that would adversely affect the existence new Independent Director is appointed within thirty (30) days after a Responsible Officer of the Borrower as a bankruptcy-remote special purpose entityhas actual knowledge or receives written notice thereof). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except Person, except, in each case, as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal and economic entity separate and distinct from any other Person, shall not identify itself as a division of any other Person and shall correct any known misunderstanding regarding its separate identity; provided that the assets assets, liabilities and operating results of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCEquityholder as required by GAAP or Applicable Law. (8) The Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10h) The Borrower shall not use seek its separate existence to perpetrate a fraud dissolution or winding up in violation whole or in part or divide or permit any division of Applicable Lawthe Borrower. (11i) The Any transaction between the Borrower and its Affiliates shall notbe on arm’s-length terms; provided that the foregoing (i) shall not apply to the execution, in connection with delivery and performance of the Facility Documents, act with an intent the Borrower’s Constituent Documents, (ii) shall not prohibit the Borrower from making Restricted Payments permitted under Section 5.02(q) and (iii) shall not prohibit the Equityholder from transferring Collateral Assets, Cash or other assets to hinder, delay the Borrower in whole or defraud any of its creditors in violation of Applicable Lawpart as a capital contribution to the Borrower. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13j) Except as permitted by or pursuant to provided in the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14k) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral ManagerEquityholder, its Affiliates or any other PersonPerson (except (i) for equity interests in Obligors in connection with the exercise of any remedies with respect to a Collateral Asset or any exchange offer, work‑out or restructuring of a Collateral Asset or (ii) the Collateral Assets). (15l) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans Assets and as permitted by or pursuant to the Facility Documents. (16m) The Borrower shall make no transfer of its assets Collateral Assets, except as permitted by or pursuant to the Facility Documents. (17n) The Borrower shall file its own tax returns separate from those of any other Person or entityTax returns, except if any, as may be required under Applicable Law, to the extent that the Borrower is (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a disregarded entity separate from its sole owner of another taxpayer for Tax purposes, within the meaning of Treasury Regulation Section 301.7701‑3 and pay any U.S. federal income Taxes and other material Taxes so required to file tax returns be paid by it under applicable law or is not permitted to file its own tax returns separate from those of any Applicable Law (other Personthan Taxes which are being contested in good faith and by proper proceedings and against which adequate reserves are being maintained in accordance with GAAP). (18o) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21p) The Borrower shall maintain adequate capital in light of its contemplated business operations; provided, however, that the foregoing shall not require the Equityholder to make capital contributions to the Borrower. (22q) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its Constituent Documents in all material respects to those in effect on a manner that would adversely affect the Closing Dateexistence of the Borrower as a bankruptcy‑remote special purpose entity. (23r) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “true sale” and “substantive non-consolidationnon‑consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct, but solely to the extent that said opinion letters expressly require such assumptions to remain true and correct at all times in all material respectsorder for such letters’ underlying opinions to be valid.

Appears in 1 contract

Samples: Credit and Security Agreement (Fidelity Private Credit Fund)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager Originator and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, provided that the Borrower may be consolidated with the BDC Originator solely for tax and accounting purposes. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts), and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3c) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4d) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (5e) The Borrower has observed, and shall observe all (Ai) limited liability company formalities and (Bii) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (6f) The Borrower shall not (Ai) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person Person, or (Bii) control the decisions or actions respecting the daily business or affairs of any other Person except as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person Person; provided that the assets of the Borrower may be consolidated into the BDC Originator for accounting purposes and included in consolidated financial statements of the BDCOriginator. (8) h) The Borrower shall not identify itself as a division of any other Person. (9i) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10j) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Law. (11k) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12l) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral ManagerServicer. (13m) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14n) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral ManagerOriginator, its Affiliates or any other Person. (15o) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16p) The Borrower shall make no transfer of its assets except as permitted by or pursuant to the Facility Documents. (17q) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18r) The Borrower shall not acquire obligations or securities of its members. (19s) The Borrower shall use separate stationery, invoices and checks. (20t) The Borrower shall correct any known misunderstanding regarding its separate identity. (21u) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22v) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar in all material respects to those in effect on the Closing Date. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (Newtek Business Services Corp.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, the Equityholder, the Sponsor and the Servicer contained in this Agreement, the Borrower (the Servicer in acting on behalf or for the benefit of the Borrower, the Equityholder in acting on behalf of the Borrower as the equityholder in the Borrower and the Sponsor in acting as seller under the Purchase and Sale Agreement) shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager PNNT and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, ; provided that the Borrower may be consolidated with into the BDC Equityholder solely for tax and accounting purposes. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3c) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any PersonPerson (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder). (4d) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided, however, in its capacity as Servicer, PNNT may from time to time advance expenses of the Borrower for which PNNT is later reimbursed pursuant to the Priority of Payments. (5e) The Borrower has observed, and shall observe observe, all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existenceexistence (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder), and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company operating agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. The Borrower shall have at least one Independent Manager at all times (subject to the time periods for replacement of Independent Managers that have resigned or have been removed set forth in the Borrower’s Constituent Documents). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person Person, except as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person (although, in connection with certain financial reporting, advertising and marketing, it may be identified as a subsidiary of the Equityholder); provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCEquityholder as required by GAAP or applicable law. (8) h) The Borrower shall not identify itself as a division of any other Person. (9i) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10j) The Borrower shall not use its separate existence to perpetrate a fraud Except as may be provided in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of transaction between the Borrower and its creditors in violation of Applicable LawAffiliates shall be on arm’s length terms. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13k) Except as permitted by by, or pursuant to to, the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other PersonPerson (other than its pledge of the Collateral hereunder to the Collateral Agent for the benefit of the Secured Parties). (14l) Except as provided in the Facility Documents, the The Borrower shall not acquire any securities or debt instruments of the Collateral ManagerEquityholder, its the Sponsor, the Servicer, any Affiliates of the foregoing or any other PersonPerson (except for equity interests in Obligors in connection with the exercise of any remedies with respect to a Collateral Loan or any exchange offer, work-out or restructuring of a Collateral Loan). (15m) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16n) The Borrower shall make no transfer of its assets Collateral Loans, except as permitted by or pursuant to the Facility Documents. (17o) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law Applicable Law or is not permitted to file its own tax returns separate from those of any other Person. (18p) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20q) The Borrower shall correct any known misunderstanding regarding its separate identity. (21r) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22s) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents Constituent Documents substantially similar in all material respects to those in effect on the Closing Date. (23t) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: First Omnibus Amendment (Pennantpark Investment Corp)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, provided that the Borrower may be consolidated with the BDC solely for tax and accounting purposes. (2) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts), and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (5) The Borrower has observed, and shall observe all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity.adversely (6) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except as permitted by or pursuant to the Facility Documents. (7) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDC. (8) The Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral Manager, its Affiliates or any other Person. (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16) The Borrower shall make no transfer of its assets except as permitted by or pursuant to the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of its members. (19) The Borrower shall use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar in all material respects to those in effect on the Closing Date. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing:- 74- 34881204v6 110062879 (1a) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, provided that the Borrower may be consolidated with the BDC Originator solely for tax and accounting purposes. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts), and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3c) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4d) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (5e) The Borrower has observed, and shall observe all (Ai) limited liability company formalities and (Bii) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (6f) The Borrower shall not (Ai) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person Person, or (Bii) control the decisions or actions respecting the daily business or affairs of any other Person except as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person Person; provided that the assets of the Borrower may be consolidated into the BDC Originator for accounting purposes and included in consolidated financial statements of the BDCOriginator. (8) h) The Borrower shall not identify itself as a division of any other Person. (9i) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10j) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Law. (11k) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12l) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager.Servicer. - 75- 34881204v6 110062879 (13m) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14n) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral ManagerOriginator, its Affiliates or any other Person. (15o) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16p) The Borrower shall make no transfer of its assets except as permitted by or pursuant to the Facility Documents. (17q) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18r) The Borrower shall not acquire obligations or securities of its members. (19s) The Borrower shall use separate stationery, invoices and checks. (20t) The Borrower shall correct any known misunderstanding regarding its separate identity. (21u) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22v) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar in all material respects to those in effect on the Closing Date. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.. ARTICLE VI

Appears in 1 contract

Samples: Credit Agreement (Newtek Business Services Corp.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, Collateral Manager and Equityholder contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its bank accounts, financial statements, books, accounting and other records, and other Borrower documents records separate from those of any other Person, provided except that the accounts of the Borrower may be included in the consolidated with financial statements of the BDC solely for tax and accounting purposesEquityholder. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents.. USActive 59109857.10 (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4c) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided that the Borrower may share overhead expenses with another Person so long as such expenses are allocated fairly and reasonably between the Borrower and such other Person. (5d) The Borrower has observed, and shall observe observe, in all material respects all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence. (e) The Borrower shall have at least one (1) Independent Director at all times; (it being understood that the Borrower shall not be in violation of the requirement to have at least one (1) Independent Director after the earlier of an Independent Director resigning or becoming deceased, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate incapacitated or any other Person to, amend, modify or otherwise change its limited liability company agreement in disabled so long as a manner that would adversely affect the existence new Independent Director is appointed within thirty (30) days after a Responsible Officer of the Borrower as a bankruptcy-remote special purpose entityhas actual knowledge or receives written notice thereof). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except Person, except, in each case, as permitted by or pursuant to the Facility Documents. (7) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDC. (8) The Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral Manager, its Affiliates or any other Person. (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16) The Borrower shall make no transfer of its assets except as permitted by or pursuant to the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of its members. (19) The Borrower shall use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar in all material respects to those in effect on the Closing Date. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Credit and Security Agreement (LGAM Private Credit LLC)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, Collateral Manager and Equityholder contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its bank accounts, financial statements, books, accounting and other records, and other Borrower documents records separate from those of any other Person, provided except that the accounts of the Borrower may be included in the consolidated with financial statements of the BDC solely for tax and accounting purposesEquityholder as required by GAAP or Applicable Law. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4c) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided that the Borrower may share overhead expenses with another Person so long as such expenses are allocated fairly and reasonably between the Borrower and such other Person. (5d) The Borrower has observed, and shall observe observe, in all material respects all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence. (e) The Borrower shall have at least one (1) Independent Director at all times; (it being understood that the Borrower shall not be in violation of the requirement to have at least one (1) Independent Director after the earlier of an Independent Director resigning or becoming deceased, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate incapacitated or any other Person to, amend, modify or otherwise change its limited liability company agreement in disabled so long as a manner that would adversely affect the existence new Independent Director is appointed within thirty (30) days after a Responsible Officer of the Borrower as a bankruptcy-remote special purpose entityhas actual knowledge or receives written notice thereof). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except Person, except, in each case, as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal and economic entity separate and distinct from any other Person, shall not identify itself as a division of any other Person and shall correct any known misunderstanding regarding its separate identity; provided that the assets assets, liabilities and operating results of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDC.Equityholder as required by GAAP or Applicable Law. USActive 55502425.1255502425.13 (8) The Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10h) The Borrower shall not use seek its separate existence to perpetrate a fraud dissolution or winding up in violation whole or in part or divide or permit any division of Applicable Lawthe Borrower. (11i) The Any transaction between the Borrower and its Affiliates shall notbe on arm’s-length terms; provided that the foregoing (i) shall not apply to the execution, in connection with delivery and performance of the Facility Documents, act with an intent the Borrower’s Constituent Documents, (ii) shall not prohibit the Borrower from making Restricted Payments permitted under Section 5.02(r) and (iii) shall not prohibit the Equityholder from transferring Collateral Loans, Cash or other assets to hinder, delay the Borrower in whole or defraud any of its creditors in violation of Applicable Lawpart as a capital contribution to the Borrower. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13j) Except as permitted by or pursuant to provided in the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14k) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral ManagerEquityholder, its Affiliates or any other PersonPerson (except for equity interests in Obligors in connection with the exercise of any remedies with respect to a Collateral Loan or any exchange offer, work-out or restructuring of a Collateral Loan). (15l) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16m) The Borrower shall make no transfer of its assets Collateral Loans, except as permitted by or pursuant to the Facility Documents. (17n) The Borrower shall file its own tax returns separate from those of any other Person or entityTax returns, except if any, as may be required under Applicable Law, to the extent that the Borrower is (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a disregarded entity separate from its sole owner of another taxpayer for Tax purposes, within the meaning of Treasury Regulation Section 301.7701-3 and pay any Taxes so required to file tax returns be paid by it under applicable law or is not permitted to file its own tax returns separate from those of any Applicable Law (other Personthan Taxes which are being contested in good faith and by proper proceedings and against which adequate reserves are being maintained in accordance with GAAP). (18o) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21p) The Borrower shall maintain adequate capital in light of its contemplated business operations; provided, however, that the foregoing shall not require the Equityholder to make capital contributions to the Borrower. (22q) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its Constituent Documents in all material respects to those in effect on a manner that would adversely affect the Closing Dateexistence of the Borrower as a bankruptcy-remote special purpose entity. (23r) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “true sale” and “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct, but solely to the extent that said opinion letters expressly require such assumptions to remain true and correct at all times in all material respects.order for such letters’ underlying opinions to be valid. USActive 55502425.1255502425.13

Appears in 1 contract

Samples: Credit and Security Agreement (Blackstone Private Credit Fund)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, the Equityholder and the Servicer contained in this Agreement, the Borrower (the Servicer in acting on behalf or for the benefit of the Borrower and the Equityholder in acting on behalf of the Borrower as the equityholder in the Borrower) shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager Equityholder and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, ; provided that the Borrower may be consolidated with into the BDC Equityholder solely for tax and accounting purposes. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of the Servicer, the Equityholder or any Affiliate of their Affiliates or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents.. USActive 56468589.1056468589.17 (3c) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any PersonPerson (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder). (4d) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided, however, in its capacity as Servicer, Blackstone Private Credit Fund may from time to time advance expenses of the Borrower for which Blackstone Private Credit Fund is later reimbursed pursuant to the Priority of Payments. (5e) The Borrower has observed, and shall observe observe, all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existenceexistence (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder), and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company operating agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. The Borrower shall have at least one Independent Manager at all times (subject to the time periods for replacement of Independent Managers that have resigned or have been removed set forth in the Borrower’s Constituent Documents). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person Person, except as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person (although, in connection with certain financial reporting, advertising and marketing, it may be identified as a subsidiary of the Equityholder); provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCEquityholder and/or the Servicer as required by GAAP or applicable law. (8) h) The Borrower shall not identify itself as a division of any other Person. (9i) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10j) The Borrower shall not use its separate existence to perpetrate a fraud Except as may be provided in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any transaction between the Borrower and any of its creditors in violation of Applicable Lawthe Servicer, the Equityholder and their Affiliates shall be on arm’s length terms. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13k) Except as permitted by by, or pursuant to to, the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other PersonPerson (other than its pledge of the Collateral hereunder to the Collateral Agent for the benefit of the Secured Parties). (14l) Except as provided in the Facility Documents, the The Borrower shall not acquire any securities or debt instruments issued by the Equityholder, the Servicer, any Affiliates of the Collateral Manager, its Affiliates foregoing or any other PersonPerson (except (i) in connection with the receipt of equity securities with respect to a Collateral Loan, an Eligible -103- USActive 56468589.1056468589.17 Investment or any exchange offer, work-out or restructuring of a Collateral Loan, (ii) equity interests in any Tax Blocker Subsidiary or (iii) the Collateral Loans). (15m) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16n) The Borrower shall make no transfer of its assets Collateral Loans, except as permitted by or not prohibited by or pursuant to the Facility Documents. (17o) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law Applicable Law or is not permitted to file its own tax returns separate from those of any other Person. (18p) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20q) The Borrower shall correct any known misunderstanding regarding its separate identity. (21r) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22s) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents Constituent Documents substantially similar in all material respects to those in effect on the Closing Date. (23t) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (Blackstone Private Credit Fund)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, the Equityholder and the Servicer contained in this Agreement, the Borrower (the Servicer in acting on behalf or for the benefit of the Borrower and the Equityholder in acting on behalf of the Borrower as the equityholder in the Borrower) shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager Equityholder and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, ; provided that the Borrower may be consolidated with into the BDC Equityholder solely for tax and accounting purposes. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of the Servicer, the Equityholder or any Affiliate of their Affiliates or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3c) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any PersonPerson (although, in connection with certain financial reporting, USActive 53852035.1153852035.14.docx -96- regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder of OFS). (4d) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided, however, in its capacity as Servicer, OFS may from time to time advance expenses of the Borrower for which OFS is later reimbursed pursuant to the Priority of Payments. (5e) The Borrower has observed, and shall observe observe, all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existenceexistence (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder or OFS), and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company operating agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. The Borrower shall have at least one Independent Manager at all times (subject to the time periods for replacement of Independent Managers that have resigned or have been removed set forth in the Borrower’s Constituent Documents). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person Person, except as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person (although, in connection with certain financial reporting, advertising and marketing, it may be identified as a subsidiary of the Equityholder or OFS); provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCEquityholder and/or the Servicer as required by GAAP or applicable law. (8) h) The Borrower shall not identify itself as a division of any other Person. (9i) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10j) The Borrower shall not use its separate existence to perpetrate a fraud Except as may be provided in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of transaction between the Borrower and its creditors in violation of Applicable LawAffiliates shall be on arm’s length terms. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13k) Except as permitted by by, or pursuant to to, the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other PersonPerson (other than its pledge of the Collateral hereunder to the Collateral Agent for the benefit of the Secured Parties). (14l) Except as provided in the Facility Documents, the The Borrower shall not acquire any securities or debt instruments of the Collateral ManagerEquityholder, its the Servicer, any Affiliates of the foregoing or any other Person, except (i) in USActive 53852035.1153852035.14.docx -97- connection with the receipt of equity securities with respect to a Collateral Loan or Eligible Investments or (ii) equity interests in any Tax Blocker Subsidiary. (15m) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16n) The Borrower shall make no transfer of its assets Collateral Loans, except as permitted by or pursuant to the Facility Documents. (17o) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law Applicable Law or is not permitted to file its own tax returns separate from those of any other Person. (18p) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20q) The Borrower shall correct any known misunderstanding regarding its separate identity. (21r) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22s) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents Constituent Documents substantially similar in all material respects to those in effect on the Closing Date. (23t) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (OFS Capital Corp)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Investment Manager and any of its Affiliates, the BDC holders of the Equity and their respective Affiliates) and in furtherance of the foregoing: (1) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, provided that the Borrower may be consolidated with the BDC solely for tax and accounting purposes. (2) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (5) The Borrower has observed, and shall observe all (A) Delaware limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (6) The Borrower does not, and shall not not, (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except as permitted by or pursuant to the Facility Documents. (7) The Except for income tax purposes, the Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCPerson. (8) The Except for income tax purposes, the Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Lawapplicable law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Lawapplicable law. (12) The Except as permitted by this Agreement and the other Facility Documents, the Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Investment Manager. (13) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral Investment Manager, its Affiliates or any other Person. (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans Obligations and as permitted by or pursuant to the Facility Documents. (16) The Borrower shall make no transfer of its assets except as permitted by or pursuant to the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of its members. (19) The Borrower shall use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21) The Borrower shall intend to maintain adequate capital in light of its contemplated business operations. (22) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents substantially similar in all material respects to those in effect on the Original Closing Date. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Credit and Security Agreement (TPG Specialty Lending, Inc.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, the Equityholder and the Servicer contained in this Agreement, the Borrower (the Servicer in acting on behalf or for the benefit of the Borrower and the Equityholder in acting on behalf of the Borrower as the equityholder in the Borrower) shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager PNNT and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, ; provided that the Borrower may be consolidated with into the BDC Equityholder solely for tax and accounting purposes. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3c) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any PersonPerson (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder). (4d) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided, however, in its capacity as Servicer, PNNT may from time to time advance expenses of the Borrower for which PNNT is later reimbursed pursuant to the Priority of Payments. (5e) The Borrower has observed, and shall observe observe, all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existenceexistence (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder), and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company operating agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. The Borrower shall have at least one Independent Manager at all times (subject to the time periods for replacement of Independent Managers that have resigned or have been removed set forth in the Borrower’s Constituent Documents). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person Person, except as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person (although, in connection with certain financial reporting, advertising and marketing, it may be identified as a subsidiary of the Equityholder); provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCEquityholder as required by GAAP or applicable law. (8) h) The Borrower shall not identify itself as a division of any other Person. (9i) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10j) The Borrower shall not use its separate existence to perpetrate a fraud Except as may be provided in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of transaction between the Borrower and its creditors in violation of Applicable LawAffiliates shall be on arm’s length terms. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13k) Except as permitted by by, or pursuant to to, the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other PersonPerson (other than its pledge of the Collateral hereunder to the Collateral Agent for the benefit of the Secured Parties). (14l) Except as provided in the Facility Documents, the The Borrower shall not acquire any securities or debt instruments of the Collateral ManagerEquityholder, its the Servicer, any Affiliates of the foregoing or any other PersonPerson (except for equity interests in Obligors in connection with the exercise of any remedies with respect to a Collateral Loan or any exchange offer, work-out or restructuring of a Collateral Loan). (15m) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16n) The Borrower shall make no transfer of its assets Collateral Loans, except as permitted by or pursuant to the Facility Documents. (17o) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law Applicable Law or is not permitted to file its own tax returns separate from those of any other Person. (18p) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20q) The Borrower shall correct any known misunderstanding regarding its separate identity. (21r) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22s) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents Constituent Documents substantially similar in all material respects to those in effect on the Closing Date. (23t) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (Pennantpark Investment Corp)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, the Equityholder and the Servicer contained in this Agreement, the Borrower (the Servicer in acting on behalf or for the benefit of the Borrower and the Equityholder in acting on behalf of the Borrower as the equityholder in the Borrower) shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager Equityholder and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, ; provided that the Borrower may be consolidated with into the BDC Equityholder solely for tax and accounting purposes. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of the Servicer, the Equityholder or any Affiliate of their Affiliates or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3c) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any PersonPerson (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder). (4d) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided, however, in its capacity as Servicer, Blackstone Private Credit Fund may from time to time advance expenses of the Borrower for which Blackstone Private Credit Fund is later reimbursed pursuant to the Priority of Payments. (5e) The Borrower has observed, and shall observe observe, all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existenceexistence (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder), and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company operating agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. The Borrower shall have at least one Independent Manager at all times (subject to the time periods for replacement of Independent Managers that have resigned or have been removed set forth in the Borrower’s Constituent Documents). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person Person, except as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person (although, in connection with certain financial reporting, advertising and marketing, it may be identified as a subsidiary of the Equityholder); provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCEquityholder and/or the Servicer as required by GAAP or applicable law. (8) h) The Borrower shall not identify itself as a division of any other Person. (9i) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10j) The Borrower shall not use its separate existence to perpetrate a fraud Except as may be provided in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any transaction between the Borrower and any of its creditors in violation of Applicable Lawthe Servicer, the Equityholder and their Affiliates shall be on arm’s length terms. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13k) Except as permitted by by, or pursuant to to, the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other PersonPerson (other than its pledge of the Collateral hereunder to the Collateral Agent for the benefit of the Secured Parties). (14l) Except as provided in the Facility Documents, the The Borrower shall not acquire any securities or debt instruments issued by the Equityholder, the Servicer, any Affiliates of the Collateral Manager, its Affiliates foregoing or any other PersonPerson (except (i) in connection with the receipt of equity securities with respect to a Collateral Loan, an Eligible Investment or any exchange offer, work-out or restructuring of a Collateral Loan, (ii) equity interests in any Tax Blocker Subsidiary or (iii) the Collateral Loans). (15m) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16n) The Borrower shall make no transfer of its assets Collateral Loans, except as permitted by or not prohibited by or pursuant to the Facility Documents. (17o) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law Applicable Law or is not permitted to file its own tax returns separate from those of any other Person. (18p) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20q) The Borrower shall correct any known misunderstanding regarding its separate identity. (21r) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22s) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents Constituent Documents substantially similar in all material respects to those in effect on the Closing Date. (23t) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (Blackstone Private Credit Fund)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager Manager, the Fund and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1) The Borrower shall maintain its bank accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, provided that the Borrower may be consolidated with the BDC solely for tax and accounting purposes. (2) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall have at least one Independent director. The Borrower shall not take any action that would result in an Insolvency Event with respect to the Borrower unless all of the members of the Borrower shall have consented in writing to such action. (4) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any PersonPerson (although, in connection with certain advertising, filings and marketing, the Borrower may be identified as a subsidiary of the Fund). (45) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (56) The Borrower shall maintain or procure the maintenance of separate financial statements (if any), including such monthly and quarterly reports as are required by the Facility Documents except to the extent that the financial statements of the Borrower may be consolidated with those of the Fund, provided that appropriate notations 131 shall be made on such financial statements to indicate the separateness of the 132 Borrower from the Fund and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such other Person. (7) The Borrower has observed, and shall observe all (A) limited liability company formalities and (B) other organizational applicable Delaware corporate formalities, in each case to the extent necessary or advisable to preserve shall comply with its separate existenceConstituent Documents, and shall preserve its existence. (8) The Borrower does not, and it shall not, nor shall it permit so long as any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect Obligation is outstanding under the existence of the Borrower as a bankruptcy-remote special purpose entity. (6) The Borrower shall not Facility Documents (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person Person, in each case, except as permitted by or pursuant to the Facility Documents. (79) The Borrower shall, at all times, pay the salaries of its own employees, if any, and maintain a sufficient number of employees in light of its contemplated business operations. (10) The Borrower shall allocate fairly and reasonably any overhead for shared office space. (11) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCPerson. (8) 12) The Borrower shall not identify itself as a division of any other PersonPerson (although, in connection with certain advertising, filings and marketing, the Borrower may be identified as a subsidiary of the Fund). (913) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (1014) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Law. (11) The Borrower shall not, in connection with Except as permitted by this Agreement and the other Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12) The the Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral ManagerManager and the Fund. (1315) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (1416) Except So long as any obligations of the Borrower are outstanding under the Facility Documents, except as provided in the Facility Documents, the Borrower shall not acquire any stock, securities or debt instruments of the Collateral Manager, its Affiliates or any other Person, except that the Borrower may invest in those investments (and purchase assets from, and sell assets to, its Affiliates as) permitted under the Facility Documents and may make any advance required or expressly permitted to be made 133 pursuant to any provisions of the Facility Documents and permit the same to remain outstanding in accordance with such provisions. (1517) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and Obligations or as permitted by or pursuant to the Facility Documents. (1618) The Borrower shall make no transfer of its assets except So long as permitted by or pursuant to any Obligations are outstanding under the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the fullest extent that permitted by law, the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of its members. (19i) The Borrower shall use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar in all material respects to those in effect on the Closing Date. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower engage in any “substantive nondissolution, liquidation, or winding-consolidation” opinion letter delivered up, in connection whole or in part, or consolidation or merger with or into any other business entity, (ii) acquire by purchase or otherwise all or substantially all of the Facility Documents will continue to be true and correct business or assets of or beneficial interest in all material respects.any other entity,

Appears in 1 contract

Samples: Credit and Security Agreement (TCW Direct Lending VIII LLC)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Investment Manager and any of its Affiliates, the BDC holders of the Equity and their respective Affiliates) and in furtherance of the foregoing: (1) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, provided that the Borrower may be consolidated with the BDC solely for tax and accounting purposes. (2) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (5) The Borrower has observed, and shall observe all (A) Delaware limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (6) The Borrower does not, and shall not not, (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except as permitted by or pursuant to the Facility Documents. (7) The Except for income tax purposes, the Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCPerson. (8) The Except for income tax purposes, the Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Lawapplicable law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Lawapplicable law. (12) The Except as permitted by this Agreement and the other Facility Documents, the Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Investment Manager. (13) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral Investment Manager, its Affiliates or any other Person. (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans Obligations and as permitted by or pursuant to the Facility Documents. (16) The Borrower shall make no transfer of its assets except as permitted by or pursuant to the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of its members. (19) The Borrower shall use separate stationerystationary, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21) The Borrower shall intend to maintain adequate capital in light of its contemplated business operations. (22) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents substantially similar in all material respects to those in effect on the Original Closing Date. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (TPG Specialty Lending, Inc.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, the Equityholder and the Servicer contained in this Agreement, the Borrower (the Servicer in acting on behalf or for the benefit of the Borrower and the Equityholder in acting on behalf of the Borrower as the equityholder in the Borrower) shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager Equityholder and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, ; provided that the Borrower may be consolidated with into the BDC Equityholder solely for tax and accounting purposes. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of the Servicer, the Equityholder or any Affiliate of their Affiliates or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3c) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any PersonPerson (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder of OFS). (4d) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided, however, in its capacity as Servicer, OFS may from time to time advance expenses of the Borrower for which OFS is later reimbursed pursuant to the Priority of Payments. (5e) The Borrower has observed, and shall observe observe, all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existenceexistence (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder or OFS), and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company operating agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. The Borrower shall have at least one Independent Manager at all times (subject to the time periods for replacement of Independent Managers that have resigned or have been removed set forth in the Borrower’s Constituent Documents). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person Person, except as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person (although, in connection with certain financial reporting, advertising and marketing, it may be identified as a subsidiary of the Equityholder or OFS); provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCEquityholder and/or the Servicer as required by GAAP or applicable law. (8) h) The Borrower shall not identify itself as a division of any other Person. (9i) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10j) The Borrower shall not use its separate existence to perpetrate a fraud Except as may be provided in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of transaction between the Borrower and its creditors in violation of Applicable LawAffiliates shall be on arm’s length terms. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13k) Except as permitted by by, or pursuant to to, the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other PersonPerson (other than its pledge of the Collateral hereunder to the Collateral Agent for the benefit of the Secured Parties). (14l) Except as provided in the Facility Documents, the The Borrower shall not acquire any securities or debt instruments of the Collateral ManagerEquityholder, its the Servicer, any Affiliates of the foregoing or any other Person, except (i) in connection with the receipt of equity securities with respect to a Collateral Loan or Eligible Investments or (ii) equity interests in any Tax Blocker Subsidiary. (15m) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16n) The Borrower shall make no transfer of its assets Collateral Loans, except as permitted by or pursuant to the Facility Documents. (17o) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law Applicable Law or is not permitted to file its own tax returns separate from those of any other Person. (18p) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20q) The Borrower shall correct any known misunderstanding regarding its separate identity. (21r) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22s) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents Constituent Documents substantially similar in all material respects to those in effect on the Closing Date. (23t) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (OFS Capital Corp)

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Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any holders of its Affiliates, the BDC Equity Interests of the Borrower and their respective Affiliates) and in furtherance of the foregoing, the Borrower shall: (1) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those not become involved in the day-to-day management of any other Person, provided that the Borrower may be consolidated with the BDC solely for tax and accounting purposes.; (2) The Borrower shall not commingle permit Holdings or pool any of Holdings’ Affiliates to become involved in the day-to-day management of the Borrower, except as permitted hereunder or to the extent provided in the Facility Documents and the Borrower LLC Agreement; (3) not engage in transactions with any other Person other than entering into the Facility Documents and those activities permitted by the Borrower LLC Agreement, the Facility Documents and matters necessarily incident or ancillary thereto; (4) observe all formalities required of a limited liability company under the laws of the State of Delaware; (5) (i) maintain separate company records and books of account from any other Person and (ii) clearly identify its funds or offices, if any, as its offices and, to the extent that the Borrower and its Affiliates have offices in the same location, allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including and for services performed by an employee of an Affiliate; (6) except to the extent otherwise permitted by the Facility Documents, maintain its assets with those separately from the assets of any Affiliate or any other Person (other than as expressly contemplated herein with respect to including through the Excluded Amounts), and it shall hold all maintenance of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3a separate bank account) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (5) The Borrower has observed, and shall observe all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (6) The Borrower shall is not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except as permitted by or pursuant to the Facility Documents. (7) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDC. (8) The Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, identify or ascertain such assets; (7) maintain separate financial statements (or identify its individual assets if part of a consolidated group, then it will show as a separate member of such group), books and records from those of any Affiliate or any other Person.; (8) allocate and charge fairly and reasonably any overhead shared with Affiliates; (9) transact all business with Affiliates on an arm’s length basis and pursuant to written, enforceable agreements, except to the extent otherwise provided in the Facility Documents; (10) The Borrower shall not use its separate existence assume, pay or guarantee any other Person’s obligations or advance funds to perpetrate a fraud in violation any other Person for the payment of Applicable Law. (11) The Borrower shall notexpenses or otherwise, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13) Except as permitted by or except pursuant to the Facility Documents, ; (11) conduct all business correspondence of the Borrower shall and other communications in the Borrower’s own name, and use separate stationery, invoices, and checks; (12) not grant a security interest or otherwise pledge its assets for the benefit act as an agent of any other Person.Person in any capacity except pursuant to contractual documents indicating such capacity and only in respect of transactions permitted by the Borrower LLC Agreement, the Facility Documents and matters necessarily incident thereto; (13) not act as an agent of Holdings or any of Holdings’ Affiliates, and not permit Holdings or any of Holdings’ Affiliates or agents of Holdings or any of Holdings’ Affiliates to act as its agent, except for any agent to the extent permitted under the Borrower LLC Agreement and the Facility Documents; (14) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral Manager, its Affiliates or any other Person. (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16) The Borrower shall make no transfer of its assets except as permitted by or pursuant to the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of its members. (19) The Borrower shall use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding the Borrower’s separate identity from Holdings or any of its separate identity.Affiliates; (2115) The not permit any Affiliate of the Borrower shall to guarantee, provide indemnification for, or pay its obligations, except for any indemnities and guarantees in connection with any Facility Documents or any consolidated tax liabilities, or except as permitted by the Borrower LLC Agreement; (16) compensate its consultants or agents, if any, from its own funds; (17) except for invoicing for Collections and servicing of the Eligible Receivables, share any common logo with or hold itself out as or be considered as a department of Holdings or any of Holdings’ Affiliates, (b) any Affiliate of a general partner, shareholder, principal or member of Holdings or any of Holdings’ Affiliates, or (c) any other Person; (18) maintain adequate capital in light of its contemplated business operations.purpose, transactions and liabilities; (19) fail at any time to have at least one (1) Independent Manager on its board of managers; provided, however, if such Independent Manager is deceased, withdraws or resigns, the Borrower shall have ten (10) Business Days to replace such Independent Manager with another Independent Manager reasonably acceptable to the Administrative Agent; provided, further, however, that during such period, no matter which requires the vote of the Independent Manager under the Borrower LLC Agreement shall be voted; (20) appoint any Person as an Independent Manager of the Borrower (A) who does not satisfy the definition of an Independent Manager or (B) with respect to any -76- Independent Manager appointed after the Closing Date, without giving ten (10) Business Days’ prior written notice to the Administrative Agent and the Lenders; (21) not amend, restate, supplement or otherwise modify its Constituent Documents in violation of this Agreement or in any respect that would impair its ability to comply with the Facility Documents; (22) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar conduct its business and activities in all material respects to those in effect compliance with the assumptions contained in the legal opinions of Xxxxxx Xxxxxxxxxx & Xxxxxxxxx LLP dated on or about the Closing Date.Date relating to substantive consolidation issues (the “Bankruptcy Opinion”), unless within ten (10) Business Days of obtaining actual knowledge or receiving notice of any non-compliance with such assumptions, it has caused to be delivered to the Lenders a legal opinion of Xxxxxx Xxxxxxxxxx & Xxxxxxxxx LLP (or other counsel acceptable to the Administrative Agent) that such non-compliance will not adversely affect the conclusions set forth in the Bankruptcy Opinion; and (23) The require any representatives of the Borrower shall to act at all times conduct its business so that any assumptions made with respect to the Borrower consistently and in any “substantive non-consolidation” opinion letter delivered furtherance of the foregoing. (b) The Borrower hereby acknowledges that the Administrative Agent and each Lender is entering into the transactions contemplated by this Agreement in connection with reliance upon the Facility Documents will continue to be true and correct in all material respectsBorrower’s identity as a legal entity that is separate from its Affiliates.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (BILL Holdings, Inc.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, the Equityholder and the Investment Advisor contained in this Agreement, the Borrower (the Investment Advisor in acting on behalf or for the benefit of the Borrower and the Equityholder in acting on behalf of the Borrower as the member of the Borrower) shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager Equityholder and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, ; provided that the Borrower may be consolidated with into the BDC Equityholder solely for tax and accounting purposes. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of the Investment Advisor, the Equityholder or any Affiliate of their Affiliates or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3c) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any PersonPerson (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder). (4d) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided, however, in its capacity as Investment Advisor, Fidelity Private Credit Fund may from time to time advance expenses of the Borrower for which Fidelity Private Credit Fund is later reimbursed pursuant to the Priority of Payments. (5e) The Borrower has observed, and shall observe observe, all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existenceexistence (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder), and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement Constituent Documents in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. The Borrower shall have at least one Independent Manager at all times (subject to the time period for replacement of Independent Managers that have died, been incapacitated, resigned or have been removed as set forth in the Borrower’s Constituent Documents). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person Person, except as permitted by or pursuant to the Facility Documents or (B) control the decisions or actions respecting the daily business or affairs of any other Person Person, except as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person (although, in connection with certain financial reporting, advertising and marketing, it may be identified as a subsidiary of the Equityholder); provided that the assets and liabilities of the Borrower may be consolidated into the BDC for tax and accounting purposes and included in consolidated financial statements of the BDCEquityholder and/or the Investment Advisor as required by GAAP or applicable law. (8) h) The Borrower shall not identify itself as a division of any other Person. (9i) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10j) The Borrower shall not use its separate existence to perpetrate a fraud Except as may be provided in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any transaction between the Borrower and any of its creditors in violation of Applicable Lawthe Investment Advisor, the Equityholder and their Affiliates shall be on arm’s length terms. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13k) Except as permitted by by, or pursuant to to, the Facility Documents, the Borrower shall not grant a security interest or otherwise mortgage, charge, pledge or otherwise grant any security over its assets for the benefit of any other PersonPerson (other than its pledge of the Collateral under the Facility Documents to the Collateral Agent for the benefit of the Secured Parties). (14l) Except as provided in the Facility Documents, the The Borrower shall not acquire any securities or debt instruments issued by the Equityholder, the Investment Advisor, any Affiliates of the Collateral Manager, its Affiliates foregoing or any other PersonPerson (except (i) those issued by a Person other than the Equityholder in connection with the receipt of equity securities with respect to a Collateral Loan or any exchange offer, work-out or restructuring of a Collateral Loan, (ii) equity interests in any Tax Blocker Subsidiary or (iii) the Collateral Loans). (15m) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16n) The Borrower shall make no transfer of its assets Collateral Loans, except as permitted by or pursuant to the Facility Documents. (17o) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law Applicable Law or is not permitted to file its own tax returns separate from those of any other Person. (18p) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20q) The Borrower shall correct any known misunderstanding regarding its separate identity. (21r) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22s) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents Constituent Documents substantially similar in all material respects to those in effect on the Closing Date. (23t) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (Fidelity Private Credit Fund)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its AffiliatesBeneficial Owners, the BDC Servicer and their respective Affiliates) and in furtherance of the foregoing, the Borrower shall: (1) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those not become involved in the day-to-day management of any other Person, provided that the Borrower may be consolidated with the BDC solely for tax and accounting purposes.; (2) The Borrower shall not commingle permit the Beneficial Owners or pool any of its funds or assets with those of any Affiliate to become involved in the day-to-day management of the Borrower, except as permitted hereunder or in the capacity of acting as the administrator of the Borrower to the extent provided in the Facility Documents and the Borrower Trust Agreement; (3) not engage in transactions with any other Person other than those activities permitted by the Borrower Trust Agreement, the Facility Documents and matters necessarily incident or ancillary thereto; (4) observe all formalities required of a statutory trust under the laws of the State of Delaware; (5) maintain separate trust records and books of account from any other Person; (6) except to the extent otherwise permitted by the Facility Documents, maintain its assets separately from the assets of any other Person (including through the maintenance of a separate bank account) in a manner that is not costly or difficult to segregate, identify or ascertain such assets; (7) maintain separate financial statements (or if part of a consolidated group, then it will show as a separate member of such group), books and records from any other Person; (8) allocate and charge fairly and reasonably any overhead shared with Affiliates; (9) shall (i) not sell, lease or otherwise transfer any property or assets to (other than in accordance with Section 5.02(g)), or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates (including, without limitation, sales of Defaulted Collateral Loans and other Collateral Loans) except as expressly contemplated herein with respect by this Agreement and the other Facility Documents, unless such transaction is upon terms no less favorable to the Excluded Amounts)Borrower than they would obtain in a comparable arm’s length transaction with a Person that is not an Affiliate (it being agreed that any purchase or sale at par shall be deemed to comply with this provision) and (ii) transact all business with Affiliates on an arm’s length basis and pursuant to written, and it shall hold all of its assets in its own nameenforceable agreements, except as to the extent otherwise permitted or required under provided in the Facility Documents. (310) The Borrower shall conduct its own business in its own name andnot assume, for all purposes, shall not operate, pay or purport guarantee any other Person’s obligations or advance funds to operate, collectively as a single or consolidated business entity with respect to any Person. (4) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (5) The Borrower has observed, and shall observe all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person tofor the payment of expenses or otherwise, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (6) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except as permitted by or pursuant to the Facility Documents. (7) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDC. (8) The Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Law.; (11) The conduct all business correspondence of the Borrower shall notand other communications in the Borrower’s own name, and use separate stationery, invoices, and checks; (12) not act as an agent of any other Person in connection with any capacity except pursuant to contractual documents indicating such capacity and only in respect of transactions permitted by the Borrower Trust Agreement, the Facility Documents and matters necessarily incident thereto; (13) not act as an agent of any Beneficial Owner, and not permit any Beneficial Owner or agent of the Beneficial Owner to act as its agent, except for any agent to the extent permitted under the Borrower Trust Agreement and the Facility Documents, act with an intent to hinder, delay or defraud any including the Administrator of its creditors in violation of Applicable Law. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person.hereunder; (14) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral Manager, its Affiliates or any other Person. (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16) The Borrower shall make no transfer of its assets except as permitted by or pursuant to the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of its members. (19) The Borrower shall use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its the Borrower’s separate identity.identity from any Beneficial Owner; (2115) The not permit any Affiliate of the Borrower shall to guarantee, provide indemnification for, or pay its obligations, except for any indemnities and guarantees in connection with any Facility Documents or any consolidated tax liabilities, or except as permitted by the Borrower Trust Agreement; (16) compensate its consultants or agents, if any, from its own funds; (17) except for invoicing for collections and servicing of the Collateral Loans, share any common logo with or hold itself out as or be considered as a department or division of (a) any general partner, shareholder, principal, member or Affiliate of a Beneficial Owner, (b) any Affiliate of a general partner, shareholder, principal or member of a Beneficial Owner, or (c) any other Person; (18) maintain adequate capital in light of its contemplated business operations.purpose, transactions and liabilities; and (2219) The Borrower shall cause the agents and other representatives of the Borrower, if any, to act at all times be organized as a special purpose entity with organizational documents substantially similar in all material respects to those in effect on the Closing Date. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower consistently and in any “substantive non-consolidation” opinion letter delivered in connection with furtherance of the Facility Documents will continue to be true and correct in all material respectsforegoing.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (Upstart Holdings, Inc.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, the Equityholder and the Servicer contained in this Agreement, the Borrower (the Servicer in acting on behalf or for the benefit of the Borrower and the Equityholder in acting on behalf of the Borrower as the equityholder in the Borrower) shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager Equityholder and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, ; provided that the Borrower may be consolidated with into the BDC Equityholder solely for tax and accounting purposes. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of the Servicer, the Equityholder or any Affiliate of their Affiliates or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3c) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any PersonPerson (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder). (4d) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided, however, in its capacity as Servicer, Blackstone/GSO Secured Lending Fund may from time to time advance expenses of the Borrower for which Blackstone/GSO Secured Lending Fund is later reimbursed pursuant to the Priority of Payments. (5e) The Borrower has observed, and shall observe observe, all (A) limited liability company corporate formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existenceexistence (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder), and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company operating agreement in a manner that USActive 53861575.5 -90- would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. The Borrower shall have at least one Independent Manager at all times (subject to the time periods for replacement of Independent Managers that have resigned or have been removed set forth in the Borrower’s Constituent Documents). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person Person, except as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person (although, in connection with certain financial reporting, advertising and marketing, it may be identified as a subsidiary of the Equityholder); provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCEquityholder as required by GAAP or applicable law. (8) h) The Borrower shall not identify itself as a division of any other Person. (9i) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10j) The Borrower shall not use its separate existence to perpetrate a fraud Except as may be provided in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any transaction between the Borrower and any of its creditors in violation of Applicable Lawthe Servicer, the Equityholder and their Affiliates shall be on arm’s length terms. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13k) Except as permitted by by, or pursuant to to, the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other PersonPerson (other than its pledge of the Collateral hereunder to the Collateral Agent for the benefit of the Secured Parties). (14l) Except as provided in the Facility Documents, the The Borrower shall not acquire any securities or debt instruments of the Collateral ManagerEquityholder, its the Servicer, any Affiliates of the foregoing or any other PersonPerson (except for equity interests in Obligors in connection with the exercise of any remedies with respect to a Collateral Loan or any exchange offer, work-out or restructuring of a Collateral Loan). (15m) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16n) The Borrower shall make no transfer of its assets Collateral Loans, except as permitted by or pursuant to the Facility Documents. (17o) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns USActive 53861575.5 -91- under applicable law Applicable Law or is not permitted to file its own tax returns separate from those of any other Person. (18p) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20q) The Borrower shall correct any known misunderstanding regarding its separate identity. (21r) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22s) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents Constituent Documents substantially similar in all material respects to those in effect on the Closing Date. (23t) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, the Equityholder and the Servicer contained in this Agreement, the Borrower (the Servicer in acting on behalf or for the benefit of the Borrower and the Equityholder in acting on behalf of the Borrower as the equityholder in the Borrower) shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager Equityholder and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, ; provided that the Borrower may be consolidated with into the BDC Equityholder solely for tax and accounting purposes. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of the Servicer, the Equityholder or any Affiliate of their Affiliates or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents.. USActive 51774144.2053776213.6-87- (3c) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any PersonPerson (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder). (4d) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided, however, in its capacity as Servicer, Blackstone/GSO Secured Lending Fund may from time to time advance expenses of the Borrower for which Blackstone/GSO Secured Lending Fund is later reimbursed pursuant to the Priority of Payments. (5e) The Borrower has observed, and shall observe observe, all (A) limited liability company corporate formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existenceexistence (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder), and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company operating agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. The Borrower shall have at least one Independent Manager at all times (subject to the time periods for replacement of Independent Managers that have resigned or have been removed set forth in the Borrower’s Constituent Documents). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person Person, except as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person (although, in connection with certain financial reporting, advertising and marketing, it may be identified as a subsidiary of the Equityholder); provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCEquityholder as required by GAAP or applicable law. (8) h) The Borrower shall not identify itself as a division of any other Person. (9i) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10j) The Borrower shall not use its separate existence to perpetrate a fraud Except as may be provided in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any transaction between the Borrower and any of its creditors in violation of Applicable Lawthe Servicer, the Equityholder and their Affiliates shall be on arm’s length terms. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13k) Except as permitted by by, or pursuant to to, the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other PersonPerson USActive 51774144.2053776213.6-88- (other than its pledge of the Collateral hereunder to the Collateral Agent for the benefit of the Secured Parties). (14l) Except as provided in the Facility Documents, the The Borrower shall not acquire any securities or debt instruments of the Collateral ManagerEquityholder, its the Servicer, any Affiliates of the foregoing or any other PersonPerson (except for equity interests in Obligors in connection with the exercise of any remedies with respect to a Collateral Loan or any exchange offer, work-out or restructuring of a Collateral Loan). (15m) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16n) The Borrower shall make no transfer of its assets Collateral Loans, except as permitted by or pursuant to the Facility Documents. (17o) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law Applicable Law or is not permitted to file its own tax returns separate from those of any other Person. (18p) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20q) The Borrower shall correct any known misunderstanding regarding its separate identity. (21r) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22s) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents Constituent Documents substantially similar in all material respects to those in effect on the Closing Date. (23t) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager Servicer and any of its Affiliates, the BDC holders of the Equity and their respective Affiliates) and in furtherance of the foregoing: (1) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other PersonPerson (without limiting the foregoing, provided it is acknowledged that for accounting purposes, the Borrower may be consolidated with the BDC solely for tax another Person as required by GAAP and accounting purposesincluded in such Person’s consolidated financial statements). (2) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person (except as may be required for U.S. federal income tax purposes and except that for accounting purposes, the Borrower may be consolidated with another Person as required by GAAP and included in such Person’s consolidated financial statements). (4) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (5) The Borrower has observed, and shall observe all (A) Delaware limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entityentity without the prior written consent of the Required Lenders. (6) The Borrower does not, and shall not not, (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except as permitted by or pursuant to the Facility Documents. (7) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCPerson. (8) The Except as may be required by the Code and regulations thereunder, the Borrower shall not identify itself as a division of any other Person. (9) The Except as otherwise contemplated under the Intercreditor Agreement, the Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Lawapplicable law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Lawapplicable law. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral ManagerServicer. (13) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral ManagerServicer, its Affiliates or any other Person. (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16) The Borrower shall make no transfer of all or substantially all of its assets except as permitted by or pursuant to the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of its members[Reserved]. (19) The Borrower shall use separate stationerystationary, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21) The Borrower shall intend to maintain adequate capital in light of its contemplated business operations. (22) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents substantially similar in all material respects to those in effect on the Closing Date, together with any amendments or modifications thereto as permitted thereunder. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (NewStar Financial, Inc.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, Collateral Manager and Equityholder contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its bank accounts, financial statements, books, accounting and other records, and other Borrower documents records separate from those of any other Person, provided except that the accounts of the Borrower may be included in the consolidated with financial statements of the BDC solely for tax and accounting purposesEquityholder. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4c) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided that the Borrower may share overhead expenses with another Person so long as such expenses are allocated fairly and reasonably between the Borrower and such other Person. (5d) The Borrower has observed, and shall observe observe, in all material respects all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence. (e) The Borrower shall have at least one (1) Independent Director at all times; (it being understood that the Borrower shall not be in violation of the requirement to have at least one (1) Independent Director after the earlier of an Independent Director resigning or becoming deceased, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate incapacitated or any other Person to, amend, modify or otherwise change its limited liability company agreement in disabled so long as a manner that would adversely affect the existence new Independent Director is appointed within thirty (30) days after a Responsible Officer of the Borrower as a bankruptcy-remote special purpose entityhas actual knowledge or receives written notice thereof). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except Person, except, in each case, as permitted by or pursuant to the Facility Documents. (7) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDC. (8) The Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral Manager, its Affiliates or any other Person. (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16) The Borrower shall make no transfer of its assets except as permitted by or pursuant to the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of its members. (19) The Borrower shall use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar in all material respects to those in effect on the Closing Date. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Credit and Security Agreement (LGAM Private Credit LLC)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, Collateral Manager and Equityholder contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its bank accounts, financial statements, books, accounting and other records, and other Borrower documents records separate from those of any other Person, provided except that the accounts of the Borrower may be included in the consolidated with financial statements of the BDC solely for tax and accounting purposesEquityholder as required by GAAP or Applicable Law. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4c) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided that the Borrower may share overhead expenses with another Person so long as such expenses are allocated fairly and reasonably between the Borrower and such other Person. (5d) The Borrower has observed, and shall observe observe, in all material respects all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence. (e) The Borrower shall have at least one (1) Independent Director at all times; (it being understood that the Borrower shall not be in violation of the requirement to have at least one (1) Independent Director after the earlier of an Independent Director resigning or becoming deceased, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate incapacitated or any other Person to, amend, modify or otherwise change its limited liability company agreement in disabled so long as a manner that would adversely affect the existence new Independent Director is appointed within thirty (30) days after a Responsible Officer of the Borrower as a bankruptcy-remote special purpose entityhas actual knowledge or receives written notice thereof). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except Person, except, in each case, as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal and economic entity separate and distinct from any other Person, shall not identify itself as a division of any other Person and shall correct any known misunderstanding regarding its separate identity; provided that the assets assets, liabilities and operating results of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCEquityholder as required by GAAP or Applicable Law. (8) The Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10h) The Borrower shall not use seek its separate existence to perpetrate a fraud dissolution or winding up in violation whole or in part or divide or permit any division of Applicable Lawthe Borrower. (11i) The Any transaction between the Borrower and its Affiliates shall notbe on arm’s-length terms; provided that the foregoing (i) shall not apply to the execution, in connection with delivery and performance of the Facility Documents, act with an intent the Borrower’s Constituent Documents, (ii) shall not prohibit the Borrower from making Restricted Payments permitted under Section 5.02(r) and (iii) shall not prohibit the Equityholder from transferring Collateral LoansAssets, Cash or other assets to hinder, delay the Borrower in whole or defraud any of its creditors in violation of Applicable Lawpart as a capital contribution to the Borrower. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13j) Except as permitted by or pursuant to provided in the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14k) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral ManagerEquityholder, its Affiliates or any other PersonPerson (except for equity interests in Obligors in connection with the exercise of any remedies with respect to a Collateral LoanAsset or any exchange offer, work-out or restructuring of a Collateral LoanAsset ). (15l) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans LoansAssets and as permitted by or pursuant to the Facility Documents. (16m) The Borrower shall make no transfer of its assets Collateral LoansAssets , except as permitted by or pursuant to the Facility Documents. (17n) The Borrower shall file its own tax returns separate from those of any other Person or entityTax returns, except if any, as may be required under Applicable Law, to the extent that the Borrower is (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a disregarded entity separate from its sole owner of another taxpayer for Tax purposes, within the meaning of Treasury Regulation Section 301.7701-3 and pay any Taxes so required to file tax returns be paid by it under applicable law or is not permitted to file its own tax returns separate from those of any Applicable Law (other Personthan Taxes which are being contested in good faith and by proper proceedings and against which adequate reserves are being maintained in accordance with GAAP). (18o) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21p) The Borrower shall maintain adequate capital in light of its contemplated business operations; provided, however, that the foregoing shall not require the Equityholder to make capital contributions to the Borrower. (22q) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its Constituent Documents in all material respects to those in effect on a manner that would adversely affect the Closing Dateexistence of the Borrower as a bankruptcy-remote special purpose entity. (23r) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “true sale” and “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct, but solely to the extent that said opinion letters expressly require such assumptions to remain true and correct at all times in all material respectsorder for such letters’ underlying opinions to be valid.

Appears in 1 contract

Samples: Credit and Security Agreement (Apollo Debt Solutions BDC)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, Collateral Manager and Equityholder contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its bank accounts, financial statements, books, accounting and other records, and other Borrower documents records separate from those of any other Person, provided except that the accounts of the Borrower may be included in the consolidated with financial statements of the BDC solely for tax and accounting purposesEquityholder. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4c) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided that the Borrower may share overhead expenses with another Person so long as such expenses are allocated fairly and reasonably between the Borrower and such other Person. (5d) The Borrower has observed, and shall observe observe, in all material respects all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence. (e) The Borrower shall have at least one (1) Independent Director at all times; (it being understood that the Borrower shall not be in violation of the requirement to have at least one (1) Independent Director after the earlier of an Independent Director resigning or becoming deceased, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate incapacitated or any other Person to, amend, modify or otherwise change its limited liability company agreement in disabled so long as a manner that would adversely affect the existence new Independent Director is appointed within thirty (30) days after a Responsible Officer of the Borrower as a bankruptcy-remote special purpose entityhas actual knowledge or receives written notice thereof). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except Person, except, in each case, as permitted by or pursuant to the Facility Documents.. USActive 59109857.1659109857.18 (7g) The Borrower shall, at all times, hold itself out to the public as a legal and economic entity separate and distinct from any other Person, shall not identify itself as a division of any other Person and shall correct any known misunderstanding regarding its separate identity; provided that the assets assets, liabilities and operating results of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCEquityholder as required by GAAP or Applicable Law. (8) The Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10h) The Borrower shall not use seek its separate existence to perpetrate a fraud dissolution or winding up in violation whole or in part or divide or permit any division of Applicable Lawthe Borrower. (11i) The Any transaction between the Borrower and its Affiliates shall notbe on arm’s-length terms; provided that the foregoing (i) shall not apply to the execution, in connection with delivery and performance of the Facility Documents or the Borrower’s Constituent Documents, act with an intent (ii) shall not prohibit the Borrower from making Restricted Payments permitted under Section 5.02(r) and (iii) shall not prohibit the Equityholder from transferring Collateral Assets, Cash or other assets to hinder, delay the Borrower in whole or defraud any of its creditors in violation of Applicable Lawpart as a capital contribution to the Borrower. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13j) Except as permitted by or pursuant to provided in the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14k) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral ManagerEquityholder, its Affiliates or any other PersonPerson (except for equity interests in Obligors in connection with the exercise of any remedies with respect to a Collateral Asset or any exchange offer, work-out or restructuring of a Collateral Asset). (15l) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans Assets and as permitted by or pursuant to the Facility Documents. (16m) The Borrower shall make no transfer of its assets Collateral Assets, except as permitted by or pursuant to the Facility Documents. (17n) The Borrower shall file its own tax returns separate from those of any other Person or entityTax returns, except if any, as may be required under Applicable Law, to the extent that the Borrower is (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a disregarded entity separate from its sole owner of another taxpayer for Tax purposes, within the meaning of Treasury Regulation Section 301.7701-3 and pay any Taxes so required to file tax returns be paid by it under applicable law or is not permitted to file its own tax returns separate from those of any Applicable Law (other Personthan Taxes which are being contested in good faith and by proper proceedings and against which adequate reserves are being maintained in accordance with GAAP). (18o) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21p) The Borrower shall maintain adequate capital in light of its contemplated business operations; provided, however, that the foregoing shall not require the Equityholder to make capital contributions to the Borrower. (22q) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its Constituent Documents in all material respects to those in effect on a manner that would adversely affect the Closing Date.existence of the Borrower as a bankruptcy-remote special purpose entity. USActive 59109857.1659109857.18 (23r) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “true sale” and “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct, but solely to the extent that said opinion letters expressly require such assumptions to remain true and correct at all times in all material respectsorder for such letters’ underlying opinions to be valid.

Appears in 1 contract

Samples: Credit and Security Agreement (LGAM Private Credit LLC)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, the Equityholder and the Servicer contained in this Agreement, the Borrower (the Servicer in acting on behalf or for the benefit of the Borrower and the Equityholder in acting on behalf of the Borrower as the equityholder in the Borrower) shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager Equityholder and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, ; provided that the Borrower may be consolidated with into the BDC Equityholder solely for tax and accounting purposes. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of the Servicer, the Equityholder or any Affiliate of their Affiliates or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3c) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any PersonPerson (although, in connection with certain financial reporting (if any), regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder). (4d) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided, however, in its capacity as Servicer, TRP OHA Servicer I, LLC may from time to time advance expenses of the Borrower for which TRP OHA Servicer I, LLC is later reimbursed pursuant to the Priority of Payments. (5e) The Borrower has observed, and shall observe observe, all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existenceexistence (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder), and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company operating agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. The Borrower shall have at least one Independent Manager at all times (subject to the time periods for replacement of Independent Managers that have resigned or have been removed set forth in the Borrower’s Constituent Documents). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person Person, except as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person (although, in connection with certain financial reporting (if any), advertising and marketing, it may be identified as a subsidiary of the Equityholder); provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCEquityholder and/or the Servicer as required by GAAP or applicable law. (8) h) The Borrower shall not identify itself as a division of any other Person. (9i) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10j) The Borrower shall not use its separate existence to perpetrate a fraud Except as may be provided in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any transaction between the Borrower and any of its creditors in violation of Applicable Lawthe Servicer, the Equityholder and their Affiliates shall be on arm’s length terms. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13k) Except as permitted by by, or pursuant to to, the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other PersonPerson (other than its pledge of the Collateral hereunder to the Collateral Agent for the benefit of the Secured Parties). (14l) Except as provided in the Facility Documents, the The Borrower shall not acquire any securities or debt instruments issued by the Equityholder, the Servicer, any Affiliates of the Collateral Manager, its Affiliates foregoing or any other PersonPerson (except (i) in connection with the receipt of equity securities with respect to a Collateral Loan, an Eligible Investment or any exchange offer, work-out or restructuring of a Collateral Loan, (ii) equity interests in any Tax Blocker Subsidiary or (iii) the Collateral Loans and the Eligible Investments). (15m) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16n) The Borrower shall make no transfer of its assets Collateral Loans, except as permitted by or not prohibited by or pursuant to the Facility Documents. (17o) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law Applicable Law or is not permitted to file its own tax returns separate from those of any other Person. (18p) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20q) The Borrower shall correct any known misunderstanding regarding its separate identity. (21r) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar in all material respects to those in effect on the Closing Date. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Credit Agreement (T. Rowe Price OHA Select Private Credit Fund)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents records separate from those of any other Person, provided except that the accounts of the Borrower may be included in the consolidated with financial statements of the BDC solely for tax and accounting purposesEquityholder as required by GAAP or applicable law. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4c) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided that the Borrower may share overhead expenses with another Person so long as such expenses are allocated fairly and reasonably between the Borrower and such other Person. (5d) The Borrower has observed, and shall observe in all material respects all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement Constituent Documents in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (6e) The Borrower shall have at least one Independent Manager at all times. (f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person Person, except as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person, shall not identify itself as a division of any other Person and shall correct any known misunderstanding regarding its separate identity; provided that the assets assets, liabilities and operating results of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCEquityholder as required by GAAP or applicable law. (8) The Borrower shall not identify itself as a division of any other Person. (9h) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10i) The Any transaction between the Borrower and its Affiliates (other than any Permitted Subsidiary) shall not use its separate existence to perpetrate a fraud in violation of Applicable Lawbe on arm’s-length terms. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13j) Except as permitted by or pursuant to provided in the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14k) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral ManagerEquityholder, its Affiliates or any other Person (except for equity interests in Obligors in connection with the exercise of any remedies with respect to a Collateral Loan or any exchange offer, work-out or restructuring of a Collateral Loan or otherwise form, acquire or own any subsidiary, own any other entity, or make any investment in any Person, except as permitted by the Facility Documents). (15l) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16m) The Borrower shall make no transfer of its assets Collateral Loans or to the fullest extent permitted by law, engage in any dissolution liquidation, merger or sale of all or substantially all of its assets, except as permitted by or pursuant to the Facility Documents. (17n) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law Applicable Law or is not permitted to file its own tax returns separate from those of any other Person. (18o) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21p) The Borrower shall maintain adequate capital in light of its contemplated business operations; provided, however, that the foregoing shall not require the Equityholder to make additional capital contributions. (22q) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents Constituent Documents substantially similar in all material respects to those in effect on the Closing Date. (23r) The Borrower shall not incur or assume any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than the Obligations, except for accrued expenses and payables in the ordinary course of its business which are paid when due. (s) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Credit and Security Agreement (Bain Capital Specialty Finance, Inc.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any holders of its Affiliates, the BDC Equity Interests of the Borrower and their respective Affiliates) and in furtherance of the foregoing, the Borrower shall: (1) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those not become involved in the day-to-day management of any other Person, provided that the Borrower may be consolidated with the BDC solely for tax and accounting purposes.; (2) The Borrower shall not commingle permit Holdings or pool any of Holdings’ Affiliates to become involved in the day-to-day management of the Borrower, except as permitted hereunder or to the extent provided in the Facility Documents and the Borrower LLC Agreement; (3) not engage in transactions with any other Person other than entering into the Facility Documents and those activities permitted by the Borrower LLC Agreement, the Facility Documents and matters necessarily incident or ancillary thereto; (4) observe all formalities required of a limited liability company under the laws of the State of Delaware; (5) (i) maintain separate company records and books of account from any other Person and (ii) clearly identify its funds or offices, if any, as its offices and, to the extent that the Borrower and its Affiliates have offices in the same location, allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including and for services performed by an employee of an Affiliate; (6) except to the extent otherwise permitted by the Facility Documents, maintain its assets with those separately from the assets of any Affiliate or any other Person (other than as expressly contemplated herein with respect to including through the Excluded Amounts), and it shall hold all maintenance of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3a separate bank account) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (5) The Borrower has observed, and shall observe all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (6) The Borrower shall is not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except as permitted by or pursuant to the Facility Documents. (7) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDC. (8) The Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, identify or ascertain such assets; (7) maintain separate financial statements (or identify its individual assets if part of a consolidated group, then it will show as a separate member of such group), books and records from those of any Affiliate or any other Person.; (8) allocate and charge fairly and reasonably any overhead shared with Affiliates; (9) transact all business with Affiliates on an arm’s length basis and pursuant to written, enforceable agreements, except to the extent otherwise provided in the Facility Documents; (10) The Borrower shall not use its separate existence assume, pay or guarantee any other Person’s obligations or advance funds to perpetrate a fraud in violation any other Person for the payment of Applicable Law. (11) The Borrower shall notexpenses or otherwise, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13) Except as permitted by or except pursuant to the Facility Documents, ; (11) conduct all business correspondence of the Borrower shall and other communications in the Borrower’s own name, and use separate stationery, invoices, and checks; (12) not grant a security interest or otherwise pledge its assets for the benefit act as an agent of any other Person.Person in any capacity except pursuant to contractual documents indicating such capacity and only in respect of transactions permitted by the Borrower LLC Agreement, the Facility Documents and matters necessarily incident thereto; (13) not act as an agent of Holdings or any of Holdings’ Affiliates, and not permit Holdings or any of Holdings’ Affiliates or agents of Holdings or any of Holdings’ Affiliates to act as its agent, except for any agent to the extent permitted under the Borrower LLC Agreement and the Facility Documents; (14) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral Manager, its Affiliates or any other Person. (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16) The Borrower shall make no transfer of its assets except as permitted by or pursuant to the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of its members. (19) The Borrower shall use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding the Borrower’s separate identity from Holdings or any of its separate identity.Affiliates; (2115) The not permit any Affiliate of the Borrower shall to guarantee, provide indemnification for, or pay its obligations, except for any indemnities and guarantees in connection with any Facility Documents or any consolidated tax liabilities, or except as permitted by the Borrower LLC Agreement; (16) compensate its consultants or agents, if any, from its own funds; (17) except for invoicing for Collections and servicing of the Eligible Receivables, share any common logo with or hold itself out as or be considered as a department of Holdings or any of Holdings’ Affiliates, (b) any Affiliate of a general partner, shareholder, principal or member of Holdings or any of Holdings’ Affiliates, or (c) any other Person; (18) maintain adequate capital in light of its contemplated business operations.purpose, transactions and liabilities; (19) fail at any time to have at least one (1) Independent Manager on its board of managers; provided, however, if such Independent Manager is deceased, withdraws or resigns, the Borrower shall have ten (10) Business Days to replace such Independent Manager with another Independent Manager reasonably acceptable to the Administrative Agent; provided, further, however, that during such period, no matter which requires the vote of the Independent Manager under the Borrower LLC Agreement shall be voted; (20) appoint any Person as an Independent Manager of the Borrower (A) who does not satisfy the definition of an Independent Manager or (B) with respect to any Independent Manager appointed after the Closing Date, without giving ten (10) Business Days’ prior written notice to the Administrative Agent and the Lenders; (21) not amend, restate, supplement or otherwise modify its Constituent Documents in violation of this Agreement or in any respect that would impair its ability to comply with the Facility Documents; (22) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar conduct its business and activities in all material respects to those in effect compliance with the assumptions contained in the legal opinions of Xxxxxx Xxxxxxxxxx & Xxxxxxxxx LLP dated on or about the Closing Date.Date relating to substantive consolidation issues (the “Bankruptcy Opinion”), unless within ten (10) Business Days of obtaining actual knowledge or receiving notice of any non-compliance with such assumptions, it has caused to be delivered to the Lenders a legal opinion of Xxxxxx Xxxxxxxxxx & Sutcliffe LLP (or other counsel acceptable to the Administrative Agent) that such non-compliance will not adversely affect the conclusions set forth in the Bankruptcy Opinion; and (23) The require any representatives of the Borrower shall to act at all times conduct its business so that any assumptions made with respect to the Borrower consistently and in any “substantive non-consolidation” opinion letter delivered furtherance of the foregoing. (b) The Borrower hereby acknowledges that the Administrative Agent and each Lender is entering into the transactions contemplated by this Agreement in connection with reliance upon the Facility Documents will continue to be true and correct in all material respectsBorrower’s identity as a legal entity that is separate from its Affiliates.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (Bill.com Holdings, Inc.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower and the Collateral Manager contained in this Agreement, the Borrower (and the Collateral Manager in acting on behalf or for the benefit of the Borrower) shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager Parent and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, provided that the Borrower may be consolidated with into the BDC Parent solely for tax and accounting purposes. (2) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided, however, in its capacity as Collateral Manager, Main Street may from time to time advance expenses of the Borrower for which Main Street is later reimbursed pursuant to the Priority of Payments. (5) The Borrower has observed, and shall observe all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. The Borrower shall have at least one Independent Manager at all times (subject to the time periods for replacement of Independent Managers that have resigned or have been removed set forth in the Borrower’s Constituent Documents). (6) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except as permitted by or pursuant to the Facility Documents. (7) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person Person; provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCParent as required by GAAP or Applicable Law. (8) The Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12) The Any transaction between the Borrower and its Affiliates shall maintain an be on arm’s length relationship with its Affiliates and the Collateral Managerterms. (13) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14) Except as provided in the Facility Documents, the The Borrower shall not acquire any securities or debt instruments of the Collateral ManagerParent, its any Affiliates of the foregoing or any other PersonPerson (except for equity interests in Obligors in connection with the exercise of any remedies with respect to a Collateral Loan or any exchange offer, work-out or restructuring of a Collateral Loan subject to the provisions of Section 5.02(p) in the case of any subsidiary formed in connection therewith). (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16) The Borrower shall make no transfer of its assets Collateral Loans except as permitted by or pursuant to the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entityPerson, except to the extent that the Borrower is not required to file tax returns under applicable law Applicable Law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of its members. (19) The Borrower shall shall, to the extent used in its business, use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents Constituent Documents substantially similar in all material respects to those in effect on the Closing Date. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (Main Street Capital CORP)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall: (a) not engage in any business or activity other than those contemplated in Section 7(a) of its limited liability company agreement, entering into and performing its obligations under the Basic Documents and engaging in activities incidental thereto; (b) not own any real property (unless arising out of the proceeds of an asset referenced in Section 7(a)(i) of its limited liability company agreement that was previously held by the Borrower); (c) not acquire or own any assets other than cash, those permitted under Section 7(a) or Section 9(j) of its limited liability company agreement or those contemplated by the Basic Documents; (d) to the fullest extent permitted by law, for so long as any Obligation (except for contingent obligations in respect of which no claim has been asserted in writing) is outstanding, not engage in, seek, consent to or permit (i) any dissolution, winding up, liquidation, consolidation or merger (other than the “Merger” referred to in the Merger Agreement), or (ii) any sale or other transfer of all or substantially all of its assets or any sale of assets outside the ordinary course of its business, except as expressly permitted by the Basic Documents; (e) pay its own debts, liabilities (including a fairly-allocated portion of any personnel and overhead expenses (including any overhead for office space) that it shares with any Affiliate) and expenses (including the salaries of its own employees) from its assets as the same shall conduct become due, and maintain adequate capital in light of its contemplated business operations and operations a sufficient number of employees for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; provided, however, that the foregoing shall not require the Equityholder to make any additional capital contributions; (f) not fail to correct any known misunderstandings regarding the separate identity of the Borrower and apart from that shall not identify itself as a division or department of any other Person (including the Collateral Manager and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing:Person; (1g) The Borrower shall maintain its bank accounts, financial statementsbooks of account, books, accounting books and other records, and other Borrower documents records separate from those of any other PersonPerson and shall file its own tax returns, provided that except to the Borrower may be consolidated with the BDC solely for extent it is treated as a “disregarded entity” and is not required to file tax and accounting purposes.returns under applicable law; (2h) The Borrower shall maintain its own records, books, resolutions and agreements; (i) not commingle or pool any of its funds or assets with those of any Affiliate or Person and shall not participate in any cash management system with any other Person Person, except as otherwise permitted or required under the Basic Documents; (other than as expressly contemplated herein with respect to the Excluded Amounts), and it shall j) hold all of its assets in its own name, except as otherwise permitted or required under the Facility Basic Documents.; (3k) The Borrower shall conduct its own business in its own name andor in a name franchised or licensed to it by an entity other than an Affiliate of itself, except for all purposesbusiness conducted on behalf of itself by another Person under a business management or investment advisory agreement that is on commercially reasonable terms, shall not operateso long as the manager, servicer, investment advisor or purport to operateequivalent thereof, collectively under such agreement holds itself out as a single or consolidated business entity with respect to any Person.an agent of the Borrower; (4i) The Borrower shall pay maintain its own debtsfinancial statements, accounting records and other entity documents separate from those of any other Person, (ii) show, in its financial statements, its assets and liabilities separate and expenses apart from those of any other Person, and (including overhead expenses, if anyiii) only out not permit its assets to be listed as assets on the financial statement of any of its own Affiliates; provided, however, that if the Borrower prepares consolidated financial statements with any Affiliates, (y) any such consolidated financial statements shall contain a note indicating the Borrower’s separateness from any such Affiliates and indicate that its assets as are not available to pay the same shall become due. (5) The Borrower has observed, and shall observe all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any debts of such Affiliate or any other Person toand (z) if the Borrower prepares its own separate balance sheet, amend, modify or otherwise change its such assets shall also be listed on the Borrower’s own separate balance sheet; (m) (i) observe all limited liability company agreement in a manner that would adversely affect the formalities necessary to maintain its separate existence of the Borrower and (ii) preserve its existence as a bankruptcy-remote special purpose entity.; (6n) The Borrower shall for so long as any Obligation (except for contingent obligations in respect of which no claim has been asserted in writing) is outstanding, not have any indebtedness other than (Ai) guaranteethe Obligations, (ii) liabilities incurred in the ordinary course of business relating to the routine administration of the Borrower, in amounts not to exceed the lesser of two percent (2%) of the outstanding principal amount of the Obligations outstanding or $2 million with notification immediately provided to the Administrative Agent should such amount exceed $500,000, which liabilities are not more than sixty (60) days past the date incurred, are not for borrowed money, are not evidenced by a note and are paid when due, and which amounts are normal and reasonable under the circumstances, and (iii) such other liabilities that are permitted pursuant to the Basic Documents or its limited liability company agreement; (o) (i) not assume, guaranty or become obligated forfor the debts of any other Person, (ii) not hold out its credit, its assets or hold itself or its credit out to be responsible for or as being available to satisfy, satisfy the debts or obligations of any other Person or and (Biii) control not pledge its assets for the decisions or actions respecting the daily business or affairs benefit of any other Person except as permitted by or (other than pursuant to the Facility Basic Documents.); (7p) The Borrower shallnot acquire obligations or securities of its Equityholder or any other owner or Affiliate other than as contemplated under Section 7(a) of its limited liability company agreement; (q) allocate fairly and reasonably any overhead expenses that are shared with any of its Affiliates, at all timesconstituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of any Affiliate; (r) maintain and use separate stationery, invoices and checks bearing its name and not bearing the name of any other entity unless such entity is clearly designated as being the Borrower’s agent; (s) hold itself out to the public as a legal entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDC. (8) The Borrower shall not identify itself as a separate and distinct entity under its own name or in a name franchised or licensed to it by an entity other than an Affiliate of the Borrower and not as a division or department of any other Person.; (9t) The Borrower shall maintain its assets in such a manner that it will shall not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person.; (10u) The Borrower shall except as permitted under the Basic Documents, not use its separate existence to perpetrate a fraud in violation of Applicable Law.make loans or advances to, or own any stock or securities of, any Person; (11v) The Borrower shall notother than the Investment Management Agreement and capital contributions and distributions permitted under its limited liability company agreement or the Basic Documents, in connection not enter into or be a party to, any transaction with the Facility Documents, act with an intent to hinder, delay Equityholder or defraud any of its creditors Affiliates except in violation the ordinary course of Applicable Law. (12) The Borrower shall maintain its business and on terms which are commercially reasonable terms comparable to those of an arm’s length relationship transaction with its Affiliates and the Collateral Manager.an unrelated third party; (13w) Except be permitted to indemnify its managers, officers, or Equityholder as the case may be in an amount not greater than the lesser of $2,000,000 or two percent (2%) of the sum of the value of Eligible Investments and Collateral Loans held by the Borrower (such limitation, the “Cap”), and for any amounts greater than the Cap, shall have no obligation to, and shall not, indemnify such parties unless such an obligation or indemnification is fully subordinated to the Obligations outstanding and shall not constitute a claim against the Borrower in the event that its cash flow is insufficient to pay the Obligations outstanding; provided that, for so long as any Obligation (except for contingent obligations in respect of which no claim has been asserted in writing) is outstanding, any indemnity payments under this Section 5.03(w) shall be subject to the Priority of Payments under Section 9.01 and shall be payable as Administrative Expenses; (x) not have any of its obligations guaranteed by an Affiliate; (y) not form, acquire or hold any subsidiary or control the decisions or actions respecting the daily business or affairs of another Person, except, in each case, as permitted by or pursuant to the Facility Basic Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person.; (14z) Except as provided in the Facility Documentsnot permit any Affiliate or constituent party independent access to its bank account(s), the Borrower shall not acquire any securities or debt instruments of the Collateral Manager, its Affiliates or any other Person. (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and than as permitted by or pursuant the Basic Documents; (aa) continue to be duly formed, validly existing and in good standing in the State of Delaware and in all other jurisdictions where it is qualified to do business; (bb) pay all taxes which it owes; (cc) compensate all consultants, independent contractors and agents from its own funds for services provided to it by such consultants, independent contractors and agents; provided, however, the foregoing shall not require the Equityholder to make any additional capital contributions to the Facility Documents.Borrower; (16dd) The Borrower shall make no transfer of not create or permit to be created or exist, any security interest, encumbrance, or other lien on its assets except as permitted by or pursuant to other than the Facility security interests created under the Basic Documents.; (17ee) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of its members. (19) The Borrower shall use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar in all material respects to those in effect on the Closing Date. (23) The Borrower shall at all times times, conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Basic Documents will continue to be true and correct in all material respects; and (ff) at all times, be organized as a single-purpose entity with Constituent Documents substantially similar to those in effect on the date hereof.

Appears in 1 contract

Samples: Credit and Security Agreement (FS Investment Corp II)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, the Collateral Manager and the Equityholder contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents records separate from those of any other Person, provided except that the accounts of the Borrower may be included in the consolidated with financial statements of the BDC solely for tax and accounting purposesEquityholder or the Collateral Manager as required by GAAP or Applicable Law. (2b) The Borrower shall not commingle or pool any of its their respective funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4c) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become duedue and shall not pay any separate debts, liabilities or expenses of the Collateral Manager or the Equityholder. (5d) The Borrower has observed, and shall observe in all material respects all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement Constituent Documents in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (6e) The Borrower shall have at least one Independent Manager at all times. (f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person Person, except as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person, shall not identify itself as a division of any other Person and shall correct any known misunderstanding regarding its separate identity; provided that the assets assets, liabilities and operating results of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of its equityholders or the BDCCollateral Manager as required by GAAP or Applicable Law. (8) The Borrower shall not identify itself as a division of any other Person. (9h) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10i) The Any transaction between the Borrower and its Affiliates shall not use its separate existence to perpetrate a fraud in violation of Applicable Lawbe on arm’s-length terms. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13j) Except as permitted by or pursuant to provided in the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14k) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral Manager, its Affiliates or any other PersonPerson (except for equity interests in Obligors in connection with the exercise of any remedies with respect to a Collateral Loan or any exchange offer, work-out or restructuring of a Collateral Loan). (15l) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16m) The Borrower shall make no transfer of its assets Collateral Loans, except as permitted by or pursuant to the Facility Documents. (17n) The Borrower shall file its own tax returns separate from those of any other Person or entityTax returns, except if any, as may be required under Applicable Law, to the extent that the Borrower is (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a disregarded entity separate from its sole owner of another taxpayer for Tax purposes, within the meaning of Treasury Regulation Section 301.7701-3 and pay any Taxes so required to file tax returns be paid by it under applicable law or is not permitted to file its own tax returns separate from those of any other PersonLaw. (18o) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21p) The Borrower shall maintain adequate capital in light of its contemplated business operations; provided, however, that the foregoing shall not require the Equityholder to make additional capital contributions. (22q) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents Constituent Documents substantially similar in all material respects to those in effect on the Closing Date. (23r) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “true sale” and “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Credit and Security Agreement (Oxford Square Capital Corp.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its AffiliatesBeneficial Owners, the BDC Servicer and their respective Affiliates) and in furtherance of the foregoing, the Borrower shall: (1) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those not become involved in the day-to-day management of any other Person, provided that the Borrower may be consolidated with the BDC solely for tax and accounting purposes.; (2) The Borrower shall not commingle permit the Beneficial Owners or pool any of its funds or assets with those of any Affiliate to become involved in the day-to-day management of the Borrower, except as permitted hereunder or in the capacity of acting as the administrator of the Borrower to the extent provided in the Facility Documents and the Borrower Trust Agreement; (3) not engage in transactions with any other Person other than those activities permitted by the Borrower Trust Agreement, the Facility Documents and matters necessarily incident or ancillary thereto; (4) observe all formalities required of a statutory trust under the laws of the State of Delaware; (5) maintain separate trust records and books of account and a separate business office from any other Person; (6) except to the extent otherwise permitted by the Facility Documents, maintain its assets separately from the assets of any other Person (including through the maintenance of a separate bank account) in a manner that is not costly or difficult to segregate, identify or ascertain such assets; (7) maintain separate financial statements (or if part of a consolidated group, then it will show as a separate member of such group), books and records from any other Person; (8) allocate and charge fairly and reasonably any overhead shared with Affiliates; (9) shall (i) not sell, lease or otherwise transfer any property or assets to (other than in accordance with Section 5.02(g)), or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates (including, without limitation, sales of Defaulted Collateral Loans and other Collateral Loans) except as expressly contemplated herein with respect by this Agreement and the other Facility Documents, unless such transaction is upon terms no less favorable to the Excluded Amounts)Borrower than they would obtain in a comparable arm’s length transaction with a Person that is not an Affiliate (it being agreed that any purchase or sale at par shall be deemed to comply with this provision) and (ii) transact all business with Affiliates on an arm’s length basis and pursuant to written, and it shall hold all of its assets in its own nameenforceable agreements, except as to the extent otherwise permitted or required under provided in the Facility Documents. (310) The Borrower shall conduct its own business in its own name andnot assume, for all purposes, shall not operate, pay or purport guarantee any other Person’s obligations or advance funds to operate, collectively as a single or consolidated business entity with respect to any Person. (4) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (5) The Borrower has observed, and shall observe all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person tofor the payment of expenses or otherwise, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (6) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except as permitted by or pursuant to the Facility Documents. (7) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDC. (8) The Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Law.; (11) The conduct all business correspondence of the Borrower shall notand other communications in the Borrower’s own name, and use separate stationery, invoices, and checks; (12) not act as an agent of any other Person in connection with any capacity except pursuant to contractual documents indicating such capacity and only in respect of transactions permitted by the Borrower Trust Agreement, the Facility Documents and matters necessarily incident thereto; (13) not act as an agent of any Beneficial Owner, and not permit any Beneficial Owner or agent of the Beneficial Owner to act as its agent, except for any agent to the extent permitted under the Borrower Trust Agreement and the Facility Documents, act with an intent to hinder, delay or defraud any including the Administrator of its creditors in violation of Applicable Law. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person.hereunder; (14) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral Manager, its Affiliates or any other Person. (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16) The Borrower shall make no transfer of its assets except as permitted by or pursuant to the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of its members. (19) The Borrower shall use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its the Borrower’s separate identity.identity from any Beneficial Owner; (2115) The not permit any Affiliate of the Borrower shall to guarantee, provide indemnification for, or pay its obligations, except for any indemnities and guarantees in connection with any Facility Documents or any consolidated tax liabilities, or except as permitted by the Borrower Trust Agreement; (16) compensate its consultants or agents, if any, from its own funds; (17) except for invoicing for collections and servicing of the Collateral Loans, share any common logo with or hold itself out as or be considered as a department or division of (a) any general partner, shareholder, principal, member or Affiliate of a Beneficial Owner, (b) any Affiliate of a general partner, shareholder, principal or member of a Beneficial Owner, or (c) any other Person; (18) maintain adequate capital in light of its contemplated business operations.purpose, transactions and liabilities; and (2219) The Borrower shall cause the agents and other representatives of the Borrower, if any, to act at all times be organized as a special purpose entity with organizational documents substantially similar in all material respects to those in effect on the Closing Date. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower consistently and in any “substantive non-consolidation” opinion letter delivered in connection with furtherance of the Facility Documents will continue to be true and correct in all material respectsforegoing.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (Upstart Holdings, Inc.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, the Equityholder and the Servicer contained in this Agreement, the Borrower (the Servicer in acting on behalf or for the benefit of the Borrower and the Equityholder in acting on behalf of the Borrower as the equityholder in the Borrower) shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager Equityholder and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, ; provided that the Borrower may be consolidated with into the BDC Equityholder solely for tax and accounting purposes. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of the Servicer, the Equityholder or any Affiliate of their Affiliates or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents.shall (3c) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any PersonPerson (although, in connection with certain financial reporting (if any), regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder). (4d) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided, however, in its capacity as Servicer, TRP OHA Servicer I, LLC may from time to time advance expenses of the Borrower for which TRP OHA Servicer I, LLC is later reimbursed pursuant to the Priority of Payments. (5e) The Borrower has observed, and shall observe observe, all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existenceexistence (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder), and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company operating agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. The Borrower shall have at least one Independent Manager at all times (subject to the time periods for replacement of Independent Managers that have resigned or have been removed set forth in the Borrower’s Constituent Documents). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person Person, except as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person (although, in connection with certain financial reporting (if any), advertising and marketing, it may be identified as a subsidiary of the Equityholder); provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCEquityholder and/or the Servicer as required by GAAP or applicable law. (8) h) The Borrower shall not identify itself as a division of any other Person. (9i) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10j) The Borrower shall not use its separate existence to perpetrate a fraud Except as may be provided in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any transaction between the Borrower and any of its creditors in violation of Applicable Lawthe Servicer, the Equityholder and their Affiliates shall be on arm’s length terms. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13k) Except as permitted by by, or pursuant to to, the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other PersonPerson (other than its pledge of the Collateral hereunder to the Collateral Agent for the benefit of the Secured Parties). (14l) Except as provided in the Facility Documents, the The Borrower shall not acquire any securities or debt instruments issued by the Equityholder, the Servicer, any Affiliates of the Collateral Manager, its Affiliates foregoing or any other PersonPerson (except (i) in connection with the receipt of equity securities with respect to a Collateral Loan, an Eligible Investment or any exchange offer, work-out or restructuring of a Collateral Loan, (ii) equity interests in any Tax Blocker Subsidiary or (iii) the Collateral Loans and the Eligible Investments). (15m) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16n) The Borrower shall make no transfer of its assets Collateral Loans, except as permitted by or not prohibited by or pursuant to the Facility Documents. (17o) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law Applicable Law or is not permitted to file its own tax returns separate from those of any other Person. (18p) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20q) The Borrower shall correct any known misunderstanding regarding its separate identity. (21r) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar in all material respects to those in effect on the Closing Date. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.. ARTICLE VI

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (T. Rowe Price OHA Select Private Credit Fund)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower Borrower, the Equityholder and the Collateral Manager contained in this Agreement, the Borrower (the Collateral Manager in acting on behalf or for the benefit of the Borrower and the Equityholder in acting on behalf of the Borrower as the equityholder in the Borrower) shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager Equityholder and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, ; provided that the Borrower may be consolidated with into the BDC Equityholder solely for tax and accounting purposes. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of the Collateral Manager, the Equityholder or any Affiliate of their Affiliates or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3c) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any PersonPerson (although, in connection with certain financial reporting (if any), regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder). (4d) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided, however, in its capacity as Collateral Manager, HPS Corporate Lending Fund may from time to time advance expenses of the Borrower for which HPS Corporate Lending Fund is later reimbursed pursuant to the Priority of Payments. (5e) The Borrower has observed, and shall observe observe, all (A) limited liability company partnership formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existenceexistence (although, in connection with certain financial reporting, regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder), and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company operating agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. The General Partner shall have at least one Independent Manager at all times (subject to the time periods for replacement of Independent Managers that have resigned or have been removed set forth in the General Partner’s Constituent Documents). (6f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person Person, except as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person (although, in connection with certain financial reporting (if any), advertising and marketing, it may be identified as a subsidiary of the Equityholder); provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCEquityholder and/or the Collateral Manager as required by GAAP or applicable law. (8) h) The Borrower shall not identify itself as a division of any other Person. (9i) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10j) The Borrower shall not use its separate existence to perpetrate a fraud Except as may be provided in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any transaction between the Borrower and any of its creditors in violation of Applicable Lawthe Collateral Manager, the Equityholder and their Affiliates shall be on arm’s length terms. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13k) Except as permitted by by, or pursuant to to, the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other PersonPerson (other than its pledge of the Collateral hereunder to the Collateral Agent for the benefit of the Secured Parties). (14l) Except as provided in the Facility Documents, the The Borrower shall not acquire any securities or debt instruments of issued by the Equityholder, the Collateral Manager, its any Affiliates of the foregoing or any other PersonPerson (except (i) in connection with the receipt of equity securities with respect to a Collateral Loan, an Eligible Investment or any exchange offer, work-out or restructuring of a Collateral Loan, (ii) equity interests in any Tax Blocker Subsidiary or (iii) the Collateral Loans). (15m) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16n) The Borrower shall make no transfer of its assets Collateral Loans, except as permitted by or not prohibited by or pursuant to the Facility Documents. (17o) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law Applicable Law or is not permitted to file its own tax returns separate from those of any other Person. (18p) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20q) The Borrower shall correct any known misunderstanding regarding its separate identity. (21r) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar in all material respects to those in effect on the Closing Date. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Credit Agreement (HPS Corporate Lending Fund)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents records separate from those of any other Person, provided except that the accounts of the Borrower may be included in the consolidated with financial statements of its equityholders or the BDC solely for tax and accounting purposesCollateral Manager as required by GAAP or applicable law. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4c) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (5d) The Borrower has observed, and shall observe in all material respects all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement Constituent Documents in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (6e) The Borrower shall have at least one Independent Manager at all times. (f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person Person, except as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person, shall not identify itself as a division of any other Person and shall correct any known misunderstanding regarding its separate identity; provided that the assets assets, liabilities and operating results of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of its equityholders or the BDCCollateral Manager as required by GAAP or applicable law. (8) The Borrower shall not identify itself as a division of any other Person. (9h) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10i) The Any transaction between the Borrower and its Affiliates shall not use its separate existence to perpetrate a fraud in violation of Applicable Lawbe on arm’s-length terms. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13j) Except as permitted by or pursuant to provided in the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14k) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral Manager, its Affiliates or any other PersonPerson (except for equity interests in Obligors in connection with the exercise of any remedies with respect to a Collateral Loan or any exchange offer, work-out or restructuring of a Collateral Loan). (15l) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16m) The Borrower shall make no transfer of its assets Collateral Loans, except as permitted by or pursuant to the Facility Documents. (17n) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law Applicable Law or is not permitted to file its own tax returns separate from those of any other Person. (18o) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21p) The Borrower shall maintain adequate capital in light of its contemplated business operations; provided, however, that the foregoing shall not require the Equityholder to make additional capital contributions. (22q) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents Constituent Documents substantially similar in all material respects to those in effect on the Closing Date. (23r) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Credit and Security Agreement (TICC Capital Corp.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Investment Manager and any of its Affiliates, the BDC holders of the Equity and their respective Affiliates) and in furtherance of the foregoing: (1) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, provided that the Borrower may be consolidated with the BDC solely for tax and accounting purposes. (2) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (5) The Borrower has observed, and shall observe all (A) Delaware limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (6) The Borrower does not, and shall not not, (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except as permitted by or pursuant to the Facility Documents. (7) The Except for income tax purposes, the Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCPerson. (8) The Except for income tax purposes, the Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Lawapplicable law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Lawapplicable law. (12) The Except as permitted by this Agreement and the other Facility Documents, the Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Investment Manager. (13) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral Investment Manager, its Affiliates or any other Person. (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans Obligations and as permitted by or pursuant to the Facility Documents. (16) The Borrower shall make no transfer of its assets except as permitted by or pursuant to the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of its members. (19) The Borrower shall use separate stationerystationary, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21) The Borrower shall intend to maintain adequate capital in light of its contemplated business operations. (22) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents substantially similar in all material respects to those in effect on the Closing Date. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (TPG Specialty Lending, Inc.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1a) The Borrower shall maintain its bank accounts, financial statements, books, accounting and other records, and other Borrower documents records separate from those of any other Person, provided that the Borrower may be consolidated with the BDC solely for tax and accounting purposes. (2b) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4c) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided that the Borrower may share overhead expenses with another Person so long as such expenses are allocated fairly and reasonably between the Borrower and such other Person. (5d) The Borrower has observed, and shall observe observe, in all material respects all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (6e) The Borrower shall have at least one (1) Independent Manager at all times. (f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except Person, except, in each case, as permitted by or pursuant to the Facility Documents. (7g) The Borrower shall, at all times, hold itself out to the public as a legal and economic entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDC. (8) The Borrower Person, shall not identify itself as a division of any other PersonPerson and shall correct any known misunderstanding regarding its separate identity. (9h) The Any transaction between the Borrower and its Affiliates shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Personon arm’s-length terms. (10) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12) The Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13i) Except as permitted by or pursuant to provided in the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14j) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral ManagerEquityholder, its Affiliates or any other PersonPerson (except for equity interests in Obligors in connection with the exercise of any remedies with respect to a Collateral Loan or any exchange offer, work-out or restructuring of a Collateral Loan). (15k) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16l) The Borrower shall make no transfer of its assets Collateral Loans, except as permitted by or pursuant to the Facility Documents. (17m) The Borrower shall file its own tax returns separate from those of any other Person or entityTax returns, except if any, as may be required under Applicable Law, to the extent that the Borrower is (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a disregarded entity separate from its sole owner of another taxpayer for Tax purposes, within the meaning of Treasury Regulation Section 301.7701-3 and pay any Taxes so required to file tax returns be paid under applicable law or is not permitted to file its own tax returns separate from those of any other PersonApplicable Law. (18n) The Borrower shall not acquire obligations or securities of shall, to the extent used in its members. (19) The Borrower shall business, use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21o) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22p) The Borrower shall at all times be organized as a special purpose entity with organizational documents substantially similar and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its Constituent Documents in all material respects to those in effect on a manner that would adversely affect the Closing Dateexistence of the Borrower as a bankruptcy-remote special purpose entity. (23q) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects, but solely to the extent that said opinion letters expressly require such assumptions to remain true and correct at all times in order for such letters’ underlying opinions to be valid. (r) The Borrower shall not fail to provide that the unanimous consent of all managers (including the consent of the Borrower’s Independent Manager) required for the Borrower to (a) institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Borrower, (e) make any assignment for the benefit of the Borrower’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing.

Appears in 1 contract

Samples: Credit and Security Agreement (Cim Real Estate Finance Trust, Inc.)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower and the Collateral Manager contained in this Agreement, the Borrower (and the Collateral Manager in acting on behalf or for the benefit of the Borrower) shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager Parent and any of its Affiliates, the BDC and their respective Affiliates) and in furtherance of the foregoing: (1) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other Person, provided that the Borrower may be consolidated with into the BDC Parent solely for tax and accounting purposes. (2) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person. (4) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided, however, in its capacity as Collateral Manager, Main Street may from time to time advance expenses of the Borrower for which Main Street is later reimbursed pursuant to the Priority of Payments. (5) The Borrower has observed, and shall observe all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, 750499896 22723957 and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. The Borrower shall have at least one Independent Manager at all times (subject to the time periods for replacement of Independent Managers that have resigned or have been removed set forth in the Borrower’s Constituent Documents). (6) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except as permitted by or pursuant to the Facility Documents. (7) The Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person Person; provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCParent as required by GAAP or Applicable Law. (8) The Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Law. (12) The Any transaction between the Borrower and its Affiliates shall maintain an be on arm’s length relationship with its Affiliates and the Collateral Managerterms. (13) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14) Except as provided in the Facility Documents, the The Borrower shall not acquire any securities or debt instruments of the Collateral ManagerParent, its any Affiliates of the foregoing or any other PersonPerson (except for equity interests in Obligors in connection with the exercise of any remedies with respect to a Collateral Loan or any exchange offer, work-out or restructuring of a Collateral Loan subject to the provisions of Section 5.02(p) in the case of any subsidiary formed in connection therewith). (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans and as permitted by or pursuant to the Facility Documents. (16) The Borrower shall make no transfer of its assets Collateral Loans except as permitted by or pursuant to the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entityPerson, except to the extent that the Borrower is not required to file tax returns under applicable law Applicable Law or is not permitted to file its own tax returns separate from those of any other Person.. 750499896 22723957 (18) The Borrower shall not acquire obligations or securities of its members. (19) The Borrower shall shall, to the extent used in its business, use separate stationery, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21) The Borrower shall maintain adequate capital in light of its contemplated business operations. (22) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents Constituent Documents substantially similar in all material respects to those in effect on the Closing Date. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Credit Agreement (Main Street Capital CORP)

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager and any of its Affiliates, the BDC Equity Owners and their respective Affiliates) and in furtherance of the foregoing: (1) The Borrower shall maintain its accounts, financial statements, books, accounting and other records, and other Borrower documents separate from those of any other PersonPerson (without limiting the foregoing, provided it is acknowledged that for accounting purposes, the Borrower may be consolidated with the BDC solely for tax another Person as required by GAAP and accounting purposesincluded in such Person’s consolidated financial statements). (2) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person (other than as expressly contemplated herein with respect to the Excluded Amounts)Person, and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person (except as may be required for U.S. federal income tax purposes and except for accounting purposes and Investment Company Act purposes, the Borrower may be consolidated with another Person as required by GAAP and included in such Person’s consolidated financial statements). (4) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due. (5) The Borrower has observed, and shall observe all (A) Delaware limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entityentity without the prior written consent of the Required Lenders. (6) The Borrower does not, and shall not not, (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person except as permitted by or pursuant to the Facility Documents. (7) The Except for income tax and consolidated accounting purposes, the Borrower shall, at all times, hold itself out to the public as a legal entity separate and distinct from any other Person provided that the assets of the Borrower may be consolidated into the BDC for accounting purposes and included in consolidated financial statements of the BDCPerson. (8) The Except for income tax purposes, the Borrower shall not identify itself as a division of any other Person. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person. (10) The Borrower shall not use its separate existence to perpetrate a fraud in violation of Applicable Lawapplicable law. (11) The Borrower shall not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its creditors in violation of Applicable Lawapplicable law. (12) The Except as permitted by this Agreement and the other Facility Documents, the Borrower shall maintain an arm’s length relationship with its Affiliates and the Collateral Manager. (13) Except as permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (14) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Collateral Manager, its Affiliates or any other Person. (15) The Borrower shall not make loans or advances to any Person, except for the Collateral Loans Obligations and as permitted by or pursuant to the Facility Documents. (16) The Borrower shall make no transfer of its assets except as permitted by or pursuant to the Facility Documents. (17) The Borrower shall file its own tax returns separate from those of any other Person or entity, except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other Person. (18) The Borrower shall not acquire obligations or securities of issued by its members. (19) The Borrower shall use separate stationerystationary, invoices and checks. (20) The Borrower shall correct any known misunderstanding regarding its separate identity. (21) The Borrower shall intend to maintain adequate capital in light of its contemplated business operations. (22) The Borrower shall at all times be organized as a special single-purpose entity with organizational documents substantially similar in all material respects to those in effect on the Closing DateDate together with any amendments or modifications thereto as permitted thereunder. (23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct in all material respects.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (WhiteHorse Finance, LLC)

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