Existence of Borrower. (a) The Borrower shall take all reasonable steps to maintain its identity as a separate legal entity from that of its members. The Borrower shall keep its principal place of business at the address specified on Appendix B. The Borrower shall keep separate books and records and will not commingle its respective funds with those of any other Person. The Borrower shall, to the maximum extent permitted by applicable law, keep in full force and effect its rights and franchises as a limited liability company incorporated under the laws of the State of Delaware, shall comply with the provisions of its organizational documents, and shall obtain and preserve its qualification to do business as a foreign limited liability company in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement or any of the Collateral. (b) The Borrower shall ensure that all limited liability company or other formalities regarding its existence (including, to the extent required by applicable law, holding regular member and managers or other similar meetings) are followed and shall conduct business in its name. The Borrower shall not take any action, or conduct its affairs in a manner, that is likely to result in its separate existence being ignored, will fail to correct any known misunderstanding regarding its existence, or in its assets and liabilities being substantively consolidated with any other Person in a bankruptcy, reorganization or other insolvency proceeding. Without limiting the foregoing, the Borrower shall not (A) have any employees (other than members, managers and any other officers appointed in compliance with the Limited Liability Company Agreement), (B) engage in any transaction with any member (other than the issuance of the Borrower’s equity) that would constitute a conflict of interest (provided that the Limited Liability Company Agreement, the Collateral Administration Agreement, the Sale and Contribution Agreement and the Investment Management Agreement shall not be deemed to be such a transaction that would constitute a conflict of interest) or (C) pay dividends other than in accordance with the Priority of Payments or any other provision of any Transaction Document that expressly permits dividends. (c) The Borrower shall (1) have a board of managers separate from that of any other person (although members of the board of managers of the Borrower may serve as managers of one or more Affiliates of the Borrower); (2) file its own tax returns, if any, as may be required under applicable law, to the extent (x) not part of a consolidated group filing a consolidated return or returns or (y) not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law; (3) not commingle its assets with assets of any other person; (4) conduct its business in its own name and strictly comply with all organizational formalities necessary to maintain its separate existence (and all such formalities have been complied with since the Borrower’s formation); (5) maintain separate financial statements (it being understood that, if the Borrower’s financial statements are part of a consolidated group with its Affiliates, then any such consolidated statements shall contain a note indicating the Borrower’s separateness from any such Affiliates and that its assets are not available to pay the debts of such Affiliate); (6) pay its own liabilities only out of its own funds; (7) maintain an arm’s-length relationship with its Affiliates; (8) not hold out its credit or assets as being available to satisfy the obligations of others; (9) pay its fair and reasonable share of overhead for shared office space, if any; (10) use separate stationery, invoices and checks and not of any other entity (unless such entity is clearly designated as being the Borrower’s agent); (11) not pledge its assets as security for the obligations of any other person; (12) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; and (13) not take any Material Action without the unanimous affirmative vote of each member of its board of managers, including, in all cases, each of the Independent Managers.
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Samples: Credit Agreement (FS Energy & Power Fund), Credit Agreement (FS Investment Corp II), Credit Agreement (FS Energy & Power Fund)
Existence of Borrower. (a) The Borrower shall take all reasonable steps to maintain its identity as a separate legal entity from that of its membersmembers (other than as appropriate for tax purposes). The Borrower shall keep its principal place of business at the address specified on Appendix B. The Borrower shall keep separate books and records and will not commingle its respective funds with those of any other Person. The Borrower shall, to the maximum extent permitted by applicable law, keep in full force and effect its rights and franchises as a limited liability company incorporated under the laws of the State of Delaware, shall comply with the provisions of its organizational documents, and shall obtain and preserve its qualification to do business as a foreign limited liability company in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement or any of the Collateral.
(b) The Borrower shall ensure that all limited liability company or other formalities regarding its existence (including, to the extent required by applicable law, holding regular member and managers or other similar meetings) are followed and shall conduct business in its name. The Borrower shall not take any action, or conduct its affairs in a manner, that is likely to result in its separate existence being ignored, will fail to correct any known misunderstanding regarding its existence, or in its assets and liabilities being substantively consolidated with any other Person in a bankruptcy, reorganization or other insolvency proceeding. Without limiting the foregoing, the Borrower shall not (A) have any employees (other than members, managers and any other officers appointed in compliance with the Limited Liability Company Agreement), (B) engage in any transaction with any member (other than the issuance of the Borrower’s 's equity) that would constitute a conflict of interest (provided that the Limited Liability Company Agreement, the Collateral Administration Agreement, the Sale and Contribution Agreement and the Investment Management Agreement shall not be deemed to be such a transaction that would constitute a conflict of interest) or (C) pay dividends other than in accordance with the Priority of Payments or any other provision of any Transaction Document that expressly permits dividends.
(c) The Borrower shall (1) have a board of managers separate from that of any other person (although members of the board of managers of the Borrower may serve as managers of one or more Affiliates of the Borrower); (2) file its own tax returns, if any, as may be required under applicable law, to the extent (x) not part of a consolidated group filing a consolidated return or returns or (y) not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law; (3) not commingle its assets with assets of any other person; (4) conduct its business in its own name and strictly comply with all organizational formalities necessary to maintain its separate existence (and all such formalities have been complied with since the Borrower’s 's formation); (5) maintain separate financial statements (it being understood that, if the Borrower’s 's financial statements are part of a consolidated group with its Affiliates, then any such consolidated statements shall contain a note indicating the Borrower’s 's separateness from any such Affiliates and that its assets are not available to pay the debts of such Affiliate); (6) pay its own liabilities only out of its own funds; (7) maintain an arm’sarm's-length relationship with its Affiliates; (8) not hold out its credit or assets as being available to satisfy the obligations of others; (9) pay its fair and reasonable share of overhead for shared office space, if any; (10) use separate stationery, invoices and checks and not of any other entity (unless such entity is clearly designated as being the Borrower’s 's agent); (11) not pledge its assets as security for the obligations of any other person; (12) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; and (13) not take any Material Action without the unanimous affirmative vote of each member of its board of managers, including, in all cases, each of the Independent Managers.
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Existence of Borrower. (a) The Borrower shall take all reasonable steps to maintain its identity as a separate legal entity from that of its members. The Borrower shall keep its principal place of business at the address specified on Appendix B. The Borrower shall keep separate books and records and will not commingle its respective funds with those of any other Person. The Borrower shall, to the maximum extent permitted by applicable law, keep maintain in full force and effect its existence and rights and franchises as a limited liability company incorporated organized under the laws of the State of Delaware, shall comply with the provisions of its organizational documents, and shall obtain and preserve its qualification to do business as a foreign limited liability company in each jurisdiction in which such qualification is qualifications are or shall be necessary to protect the validity and enforceability of this Agreement Agreement, the Indenture, the Notes or any of the CollateralAssets; provided, however, that the Borrower shall be entitled to change its jurisdiction of formation from the State of Delaware to any other jurisdiction reasonably selected by the Borrower so long as (i) the Borrower has received a legal opinion (upon which the Trustee, the Collateral Agent and the Loan Agent may conclusively rely) to the effect that such change is not disadvantageous in any material respect to the Holders or the Lenders, (ii) written notice of such change shall have been given by the Borrower to the Trustee, the Collateral Agent, the Loan Agent (which shall provide such notice to the Lenders), the Collateral Manager, each Lender and the Rating Agency and (iii) on or prior to the 15th Business Day following receipt of such notice the Collateral Agent shall not have received written notice from a Majority of the Controlling Class objecting to such change.
(b) The Borrower shall (i) ensure that all limited liability company or other formalities regarding its existence (including, to the extent required by applicable lawif required, holding regular member meetings of its manager(s) and managers member(s), or other similar similar, meetings) are followed followed, (ii) maintain its books and shall conduct business in records separate from any other Person, (iii) maintain its nameaccounts separate from those of any other Person, (iv) not commingle any of its assets with those of another Person, (v) maintain an arm’s-length relationship with its Affiliates, (vi) maintain separate financial statements from those of any other Person, (vii) pay its liabilities out of its respective funds, (viii) hold itself out as a separate entity and (ix) take affirmative steps to correct any misunderstanding regarding its separate identity. The Borrower shall not take any action, or conduct its affairs in a manner, that is likely to result in its separate existence being ignored, will fail to correct any known misunderstanding regarding its existence, ignored or in its assets and liabilities being substantively consolidated with any other Person in a bankruptcy, reorganization or other insolvency proceeding. Without limiting the foregoing, (I) the Borrower shall not have any subsidiaries; and (II) the Borrower shall not (A) have any employees (other than membersexcept as contemplated by the Collateral Management Agreement or its limited liability company agreement, managers and any other officers appointed in compliance with the Limited Liability Company Agreement), (B) engage in any transaction with any member (other than the issuance of the Borrower’s equity) that would constitute a conflict of interest (provided that the Limited Liability Company Agreement, the Collateral Administration Agreement, the Sale and Contribution Agreement and the Investment Management Agreement shall not be deemed to be such a transaction that would constitute a conflict of interest) or (CB) pay dividends other than make distributions on the Subordinated Notes except in accordance with the terms of this Agreement, the Indenture and the Priority of Payments or any other provision of any Transaction Document that expressly permits dividendsPayments.
(c) The Borrower shall (1) have a board of managers separate from that of any other person (although members of the board of managers of the Borrower may serve as managers of one or more Affiliates of the Borrower); (2) file its own tax returns, if any, as may be required under applicable law, to the extent (x) not part of a consolidated group filing a consolidated return or returns or (y) not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law; (3) not commingle its assets with assets of any other person; (4) conduct its business in its own name and strictly comply with all organizational formalities necessary to maintain its separate existence (and all such formalities have been complied with since the Borrower’s formation); (5) maintain separate financial statements (it being understood that, if the Borrower’s financial statements are part of a consolidated group with its Affiliates, then any such consolidated statements shall contain a note indicating the Borrower’s separateness from any such Affiliates and that its assets are not available to pay the debts of such Affiliate); (6) pay its own liabilities only out of its own funds; (7) maintain an arm’s-length relationship with its Affiliates; (8) not hold out its credit or assets as being available to satisfy the obligations of others; (9) pay its fair and reasonable share of overhead for shared office space, if any; (10) use separate stationery, invoices and checks and not of any other entity (unless such entity is clearly designated as being the Borrower’s agent); (11) not pledge its assets as security for the obligations of any other person; (12) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; and (13) not take any Material Action without the unanimous affirmative vote of each member of its board of managers, including, in all cases, each of the Independent Managers.
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Existence of Borrower. (a) The Borrower shall take all reasonable steps to maintain its identity as a separate legal entity from that of its members. The Borrower shall keep its principal place of business at the address specified on Appendix B. The Borrower shall keep separate books and records and will not commingle its respective funds with those of any other Person. The Borrower shall, to the maximum extent permitted by applicable law, keep maintain in full force and effect its existence and rights and franchises as a limited liability company incorporated organized under the laws of the State of Delaware, shall comply with the provisions of its organizational documents, and shall obtain and preserve its qualification to do business as a foreign limited liability company corporation in each jurisdiction in which such qualification is qualifications are or shall be necessary to protect the validity and enforceability of this Agreement Agreement, the Indenture and Security Agreement, the Notes, the Preferred Shares, the Loans or any of the CollateralAssets; provided that, subject to Delaware law, the Borrower shall be entitled to change its jurisdiction of formation from Delaware to any other jurisdiction reasonably selected by the Borrower and approved by a Majority of the Preferred Shares in accordance with the Limited Liability Company Agreement, so long as (x) (i) the Borrower has received an Opinion of Counsel (upon which the Collateral Trustee may conclusively rely) to the effect that such change is not disadvantageous in any material respect to the Holders, (ii) written notice of such change shall have been given to the Collateral Trustee by the Borrower, which notice shall be promptly forwarded by the Collateral Trustee to the Holders, the Collateral Manager and the Rating Agency and (iii) on or prior to the 15th Business Day following receipt of such notice the Collateral Trustee shall not have received written notice from a Majority of the Controlling Class objecting to such change or (y) such change is being made in connection with a supplemental indenture pursuant to Section 8.1(a)(xxviii) of the Indenture and Security Agreement.
(b) The Borrower shall (i) ensure that all limited liability company or other formalities regarding its existence (including, to the extent required by applicable law, including holding regular member board of directors’ and managers shareholders’, or other similar similar, meetings) are followed followed, (ii) maintain its books and shall conduct business in records separate from any other Person, (iii) maintain its nameaccounts separate from those of any other Person, (iv) not commingle any of its assets with those of another Person, (v) maintain an arm’s-length relationship with its Affiliates, (vi) maintain separate financial statements from those of any other Person, (vii) pay its liabilities out of its funds, (viii) hold itself out as a separate entity and (ix) take affirmative steps to correct any misunderstanding regarding its separate identity. The Borrower shall not take any action, or conduct its affairs in a manner, that is likely to result in its separate existence being ignored, will fail to correct any known misunderstanding regarding its existence, ignored or in its assets and liabilities being substantively consolidated with any other Person in a bankruptcy, reorganization or other insolvency proceeding. Without limiting the foregoing, (I) the Borrower shall not have any subsidiaries; and (II) except to the extent contemplated in its Organizational Documents, the Borrower shall not (A) have any employees (other than members, managers and any other officers appointed in compliance with the Limited Liability Company Agreementits respective directors), (B) except as contemplated by the Collateral Management Agreement or its Organizational Documents, engage in any transaction with any member (other than the issuance of the Borrower’s equity) shareholder that would constitute a conflict of interest (provided that the Limited Liability Company Agreement, the Collateral Administration Agreement, the Sale and Contribution Agreement and the Investment Management Agreement shall not be deemed to be such a transaction that would constitute a conflict of interest) or (C) pay dividends other than or any final distribution on the Preferred Shares except in accordance with the terms of this Agreement, the Indenture and Security Agreement, the Fiscal Agency Agreement, the Limited Liability Company Agreement and the Priority of Payments or any other provision of any Transaction Document that expressly permits dividendsPayments.
(c) The Borrower shall (1) have a board of managers separate from that of any other person (although members of the board of managers of the Borrower may serve as managers of one or more Affiliates of the Borrower); (2) file its own tax returns, if any, as may be required under applicable law, to the extent (x) not part of a consolidated group filing a consolidated return or returns or (y) not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law; (3) not commingle its assets with assets of any other person; (4) conduct its business in its own name and strictly comply with all organizational formalities necessary to maintain its separate existence (and all such formalities have been complied with since the Borrower’s formation); (5) maintain separate financial statements (it being understood that, if the Borrower’s financial statements are part of a consolidated group with its Affiliates, then any such consolidated statements shall contain a note indicating the Borrower’s separateness from any such Affiliates and that its assets are not available to pay the debts of such Affiliate); (6) pay its own liabilities only out of its own funds; (7) maintain an arm’s-length relationship with its Affiliates; (8) not hold out its credit or assets as being available to satisfy the obligations of others; (9) pay its fair and reasonable share of overhead for shared office space, if any; (10) use separate stationery, invoices and checks and not of any other entity (unless such entity is clearly designated as being the Borrower’s agent); (11) not pledge its assets as security for the obligations of any other person; (12) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; and (13) not take any Material Action without the unanimous affirmative vote of each member of its board of managers, including, in all cases, each of the Independent Managers.
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