Money for Debt Payments to be Held in Trust. All payments or distributions of amounts due and payable with respect to any Debt that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer by the Collateral Trustee or a Paying Agent (and, in the case of the Class A-LR Loans, the Loan Agent) as with respect to payments or distributions on the Debt. Money for Note Payments to be Held in Trust. All payments of amounts due and payable with respect to any Secured Debt and Subordinated Securities that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer (and, in the case of the Co-Issued Debt, the Issuers) by the Collateral Trustee or a Paying Agent with respect to payments or distributions on the Secured Debt and Subordinated Securities. When the IssuersIssuer shall have a Paying Agent that is not also the Registrar, the IssuersIssuer shall furnish, or cause the Registrar to furnish, no later than the fifth calendar day after each Record Date a list, if necessary, in such form as such Paying Agent may reasonably request, of the names and addresses of the Holders and of the certificate numbers of individual Notes held by each such Holder. Whenever the IssuersIssuer shall have a Paying Agent other than the Collateral Trustee, the IssuersIssuer shall, on or before the Business Day next preceding each Payment Date and on any Redemption Date, as the case may be, direct the Collateral Trustee to deposit on such Payment Date or such Redemption Date, as the case may be, with such Paying Agent, if necessary, an aggregate sum sufficient to pay the amounts then becoming due (to the extent funds are then available for such purpose in the Payment Account), such sum to be held in trust for the benefit of the Persons entitled thereto and (unless such Paying Agent is the Collateral Trustee) the IssuersIssuer shall promptly notify the Collateral Trustee of its action or failure so to act. Any Monies deposited with a Paying Agent (other than the Collateral Trustee) in excess of an amount sufficient to pay the amounts then becoming due on the Secured Debt and Subordinated Securities with respect to which such deposit was made shall be paid over by such Paying Agent to the Collateral Trustee for application in accordance with Article XI. The initial Paying Agent shall be as set forth in Section 7.2. Any additional or successor Paying Agents shall be appointed by Issuer Order with written notice thereof to the Collateral Trustee; provided that, with respect to any additional or successor Paying Agent, (x) so long as the NotesSecured Debt of any Class are rated by S&P either (i) such Paying Agent has a long-term debtissuer credit rating of ““A+”” or higher by S&P or a short-term debt rating of ““A-1”” by S&P or (ii) the S&P Rating Condition is satisfied. If such successor Paying Agent ceases to have any such minimum rating specified in clause (i) of the immediately preceding sentence, the Issuer shall promptly remove such Paying Agent and appoint a successor Paying Agent. The IssuersIssuer shall not appoint any Paying Agent that is not, at the time of such appointment, a depository institution or trust company subject to supervision and examination by federal and/or state and/or national banking authorities. The IssuersIssuer shall cause each Paying Agent other than the Collateral Trustee to execute and deliver to the Collateral Trustee an instrument in which such Paying Agent shall agree with the Collateral Trustee and if the Collateral Trustee acts as Paying Agent, it hereby so agrees, subject to the provisions of this Section 7.3, that such Paying Agent will: (a) allocate all sums received for payment to the Holders of Secured Debt or Subordinated Securities for which it acts as Paying Agent on each Payment Date and any Redemption Date among such Persons in the proportion specified in the applicable Distribution Report to the extent permitted by applicable law; (b) hold all sums held by it for the payment of amounts due with respect to the Secured Debt or Subordinated Securities in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided; (c) if such Paying Agent is not the Collateral Trustee, immediately resign as a Paying Agent and forthwith pay to the Collateral Trustee all sums held by it in trust for the payment of the Secured Debt or Subordinated Securities if at any time it ceases to meet the standards set forth above required to be met by a Paying Agent at the time of its appointment; (d) if such Paying Agent is not the Collateral Trustee, immediately give the Collateral Trustee notice of any default by the Issuer in the making of any payment required to be made; and (e) if such Paying Agent is not the Collateral Trustee, during the continuance of any such default, upon the written request of the Collateral Trustee, forthwith pay to the Collateral Trustee all sums so held in trust by such Paying Agent. The IssuersIssuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Collateral Trustee all sums held in trust by the IssuersIssuer or such Paying Agent, such sums to be held by the Collateral Trustee upon the same trusts as those upon which such sums were held by the IssuersIssuer or such Paying Agent; and, upon such payment by any Paying Agent to the Collateral Trustee, such Paying Agent shall be released from all further liability with respect to such Money. Except as otherwise required by applicable law, any Money deposited with the Collateral Trustee or any Paying Agent in trust for any payment on any Secured Debt or Subordinated Securities and remaining unclaimed for two years after such amount has become due and payable shall be paid to the Issuer on Issuer Order; and the Holder of such Secured Debt or Subordinated Securities shall thereafter, as an unsecured general creditor, look only to the Issuer for payment of such amounts (but only to the extent of the amounts so paid to the Issuer) and all liability of the Collateral Trustee or such Paying Agent with respect to such trust Money shall thereupon cease. The Collateral Trustee or such Paying Agent, before being required to make any such release of payment, may, but shall not be required to, adopt and employ, at the expense of the IssuersIssuer any reasonable means of notification of such release of payment, including, but not limited to, mailing notice of such release to Holders whose Secured Debt or Subordinated Securitieshas been called but have not been surrendered for redemption or whose right to or interest in Monies due and payable but not claimed is determinable from the records of any Paying Agent, at the last address of record of each such Holder. (a) EachExistence of the Issuer and Co-Issuer. (a) The Issuer shall take all reasonable steps to maintain its identity as a separate legal entity from that of its shareholders or members, as applicable. Each of theThe Issuer and the Co-Issuer shall keep its registered office or principal place of business (as the case may be) in the same city, state and country indicated in the address specified in Section 14.3. Each of theThe Issuer and the Co-Issuer shall keep separate books and records and shall not commingle its respective funds with those of any other Person. The Issuer and the Co-Issuer shall keep in full force and effect theirits rights and franchises as a company incorporated under the laws of the Cayman Islands and as a limited liability company organized under the laws of the State of Delaware, respectively, shall comply with the provisions of their respectiveits Organizational Documents and shall obtain and preserve theirits qualification to do business as foreign corporations in each jurisdiction in which such qualifications are or shall be necessary to protect the validity and enforceability of this Indenture, the Secured Debt or Subordinated Securities, the Credit Agreement, or any of the Assets; provided, however, that, subject to Cayman IslandsDelaware law, the Issuer shall be entitled to change its jurisdiction of incorporationformation from the Cayman IslandsDelaware to any other jurisdiction reasonably selected by the Issuer and approved by a Majority of the Subordinated SecuritiesPreferred Shares in accordance with the Limited Liability Company Agreement, so long as (x) (i) the Issuer 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 Issuer, which notice shall be promptly forwarded by the Collateral Trustee to the Holders, the Collateral Manager and the Rating Agency, and (iii) the S&P Rating Condition is satisfied and (iv) 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)(xxix). (b) Each of the Issuer and the Co-The Issuer shall (i) ensure that all corporate (or, in the case of the Co-Issuer, limited liability company) or other formalities regarding its existence (including, to the extent required by applicable law, holding regular board of directors’, partners’, member’s, manager andmembers’, managers’ and shareholders’ or other similar meetings) are followed, (ii) conduct business in its own name, (iii) correct any known misunderstanding as to its separate existence, (iv) maintain separate financial statements (if any), (v) maintain an arm’s-length relationship with any Affiliates, (vi) maintain adequate capital in light of its contemplated business operations and, (vii) not commingle its funds with those of any other entity. Neither the Issuer nor the Co-Issuer shall and (viii) pay its own liabilities out of its own funds. The Issuer shall not take any action, or conduct its affairs in a manner, that is likely to result in its separate existence being 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 Issuer shall not have any subsidiaries (other than the Co-Issuer and any subsidiaries necessitated by a change of jurisdiction pursuant to clause (a), subject to satisfaction of the S&P Rating Condition in the case of such clause (a)), and (ii) the Co-Issuer shall not have any subsidiaries and (iii) the Issuer and the Co-Issuer shall not (A) have any employees (other than their respectiveits directors, manager and officers) to the extent they are employees, (B) engage in any transaction with any shareholder, member or partner that would constitute a conflict of interest (provided that each Transaction Document shall not be deemed to be such a transaction that would constitute a conflict of interest) or (C) pay dividends or make distributions to its owners other than in accordance with the provisions of this Indenture. This Section 7.4(b) shall not be binding to the extent inconsistent with the status of the Issuer as an entity disregarded from its sole owner for U.S. federal income tax purposes. (c) The Co-IssuerIssuer will at all times have at least one Independent manager under the Limited Liability Company Agreement.
Appears in 1 contract
Money for Debt Payments to be Held in Trust. All payments or distributions of amounts due and payable with respect to any Debt that are is to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer by the Collateral Trustee or a Paying Agent (and, in the case of the Class A-LR Loans, the Loan Agent) as with respect to payments or distributions on the Debt. Money for Note Payments to be Held in Trust. All payments of amounts due and payable with respect to any Secured Debt and Subordinated Securities that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer (and, in the case of the Co-Issued Debt, the Issuers) by the Collateral Trustee or a Paying Agent with respect to payments or distributions on the Secured Debt and Subordinated SecuritiesDebt. When the IssuersIssuer Issuer shall have a Paying Agent that is not also the Registrar, the IssuersIssuer it shall furnish, or cause the Registrar to furnish, no later than the fifth calendar day after each Record Date a list, if necessary, in such form as such Paying Agent may reasonably request, of the names and addresses of the Holders and of the certificate numbers of individual Notes held by each such Holder. Whenever the IssuersIssuer Issuer shall have a Paying Agent other than the Collateral TrusteeAgent, the IssuersIssuer it shall, on or before the Business Day next preceding each Payment Date and on any Redemption Date, as the case may be, direct the Collateral Trustee Agent to deposit on such Payment Date or such Redemption Date, as the case may be, with such Paying Agent, if necessary, an aggregate sum sufficient to pay the amounts then becoming due (to the extent funds are then available for such purpose in the Payment Account), such sum to be held in trust for the benefit of the Persons entitled thereto and (unless such Paying Agent is the Collateral TrusteeAgent) the IssuersIssuer Issuer shall promptly notify the Collateral Trustee Agent of its action or failure so to act. Any Monies deposited with a Paying Agent (other than the Collateral TrusteeAgent) in excess of an amount sufficient to pay the amounts then becoming due on the Secured Debt and Subordinated Securities with respect to which such deposit was made shall be paid over by such Paying Agent to the Collateral Trustee Agent for application in accordance with Article XI. The initial Paying Agent shall be as set forth in Section 7.2. Any additional or successor Paying Agents shall be appointed by Issuer Order with written notice thereof to the Collateral Trustee; provided thatthat so long as the Debt of any Class is rated by the Rating Agency, with respect to any additional or successor Paying Agent, (x) so long as the NotesSecured Debt of any Class are rated by S&P either (i) such Paying Agent has a long-term debtissuer credit debt rating of ““A+”” or higher by S&P or a short-term debt rating of ““A-1”” by S&P or (ii) the S&P Rating Condition is satisfied. If such successor Paying Agent ceases to have any such minimum a long-term debt rating specified in clause (i) of the immediately preceding sentence“A+” or higher by S&P or a short-term debt rating of “A-1” by S&P, the Issuer shall promptly remove such Paying Agent and appoint a successor Paying Agent. The IssuersIssuer Issuer shall not appoint any Paying Agent that is not, at the time of such appointment, a depository institution or trust company subject to supervision and examination by federal and/or state and/or national banking authorities. The IssuersIssuer Issuer shall cause each Paying Agent other than the Collateral Trustee to execute and deliver to the Collateral Trustee Agent an instrument in which such Paying Agent shall agree with the Collateral Trustee Agent and if the Collateral Trustee acts as Paying Agent, it hereby so agrees, subject to the provisions of this Section 7.3, that such Paying Agent will:
(a) allocate all sums received for payment to the Holders of Secured Debt or Subordinated Securities and the Issuer for which it acts as Paying Agent on each Payment Date and any Redemption Date among such Persons Holders in the proportion specified in the applicable Distribution Report to the extent permitted by applicable law;
(b) hold all sums held by it for the payment of amounts due with respect to the Secured Debt or Subordinated Securities and otherwise to the Issuer in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;
(c) if such Paying Agent is not the Collateral TrusteeAgent, immediately resign as a Paying Agent and forthwith pay to the Collateral Trustee Agent all sums held by it in trust for the payment of Notes and otherwise to the Secured Debt or Subordinated Securities Issuer if at any time it ceases to meet the standards set forth above required to be met by a Paying Agent at the time of its appointment;
(d) if such Paying Agent is not the Collateral TrusteeAgent, immediately give the Collateral Trustee Agent notice of any default by the Issuer in the making of any payment required to be made; and
(e) if such Paying Agent is not the Collateral TrusteeAgent, during the continuance of any such default, upon the written request of the Collateral TrusteeAgent, forthwith pay to the Collateral Trustee Agent all sums so held in trust by such Paying Agent. The IssuersIssuer Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Collateral Trustee Agent all sums held in trust by the IssuersIssuer Issuer or such Paying Agent, such sums to be held by the Collateral Trustee Agent upon the same trusts as those upon which such sums were held by the IssuersIssuer Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the Collateral TrusteeAgent, such Paying Agent shall be released from all further liability with respect to such Money. Except as otherwise required by applicable law, any Money deposited with the Collateral Trustee or any Paying Agent in trust for any payment on any Secured Debt or Subordinated Securities and remaining unclaimed for two years after such amount has become due and payable shall be paid to the Issuer on Issuer Order; and the Holder of such Secured Debt or Subordinated Securities shall thereafter, as an unsecured general creditor, look only to the Issuer for payment of such amounts (but only to the extent of the amounts so paid to the Issuer) and all liability of the Collateral Trustee or such Paying Agent with respect to such trust Money shall thereupon cease. The Collateral Trustee or such Paying Agent, before being required to make any such release of payment, may, but shall not be required to, adopt and employ, at the expense of the IssuersIssuer Issuer any reasonable means of notification of such release of payment, including, but not limited to, mailing notice of such release to Holders whose Secured Debt or Subordinated Securitieshas have been called but have not been surrendered for redemption or whose right to or interest in Monies due and payable but not claimed is determinable from the records of any Paying Agent, at the last address of record of each such Holder.
(a) EachExistence of the Issuer and Co-Issuer.
(a) The Issuer shall take all reasonable steps to maintain its identity as a separate legal entity from that of its shareholders or members, as applicable. Each of theThe Issuer and the Co-Issuer shall keep its registered office or principal place of business (as the case may be) in the same city, state and country indicated in the address specified in Section 14.3. Each of theThe Issuer and the Co-Issuer shall keep separate books and records and shall not commingle its respective funds with those of any other Person. The Issuer and the Co-Issuer shall keep in full force and effect theirits rights and franchises as a company incorporated under the laws of the Cayman Islands and as a limited liability company organized under the laws of the State of Delaware, respectively, shall comply with the provisions of their respectiveits Organizational Documents and shall obtain and preserve theirits qualification to do business as foreign corporations in each jurisdiction in which such qualifications are or shall be necessary to protect the validity and enforceability of this Indenture, the Secured Debt or Subordinated Securities, the Credit Agreement, or any of the Assets; provided, however, that, subject to Cayman IslandsDelaware law, the Issuer shall be entitled to change its jurisdiction of incorporationformation from the Cayman IslandsDelaware to any other jurisdiction reasonably selected by the Issuer and approved by a Majority of the Subordinated SecuritiesPreferred Shares in accordance with the Limited Liability Company Agreement, so long as (x) (i) the Issuer 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 Issuer, which notice shall be promptly forwarded by the Collateral Trustee to the Holders, the Collateral Manager and the Rating Agency, and (iii) the S&P Rating Condition is satisfied and (iv) 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)(xxix).
(b) Each of the Issuer and the Co-The Issuer shall (i) ensure that all corporate (or, in the case of the Co-Issuer, limited liability company) or other formalities regarding its existence (including, to the extent required by applicable law, holding regular board of directors’, partners’, member’s, manager andmembers’, managers’ and shareholders’ or other similar meetings) are followed, (ii) conduct business in its own name, (iii) correct any known misunderstanding as to its separate existence, (iv) maintain separate financial statements (if any), (v) maintain an arm’s-length relationship with any Affiliates, (vi) maintain adequate capital in light of its contemplated business operations and, (vii) not commingle its funds with those of any other entity. Neither the Issuer nor the Co-Issuer shall and (viii) pay its own liabilities out of its own funds. The Issuer shall not take any action, or conduct its affairs in a manner, that is likely to result in its separate existence being 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 Issuer shall not have any subsidiaries (other than the Co-Issuer and any subsidiaries necessitated by a change of jurisdiction pursuant to clause (a), subject to satisfaction of the S&P Rating Condition in the case of such clause (a)), and (ii) the Co-Issuer shall not have any subsidiaries and (iii) the Issuer and the Co-Issuer shall not (A) have any employees (other than their respectiveits directors, manager and officers) to the extent they are employees, (B) engage in any transaction with any shareholder, member or partner that would constitute a conflict of interest (provided that each Transaction Document shall not be deemed to be such a transaction that would constitute a conflict of interest) or (C) pay dividends or make distributions to its owners other than in accordance with the provisions of this Indenture. This Section 7.4(b) shall not be binding to the extent inconsistent with the status of the Issuer as an entity disregarded from its sole owner for U.S. federal income tax purposes.
(c) The Co-IssuerIssuer will at all times have at least one Independent manager under the Limited Liability Company Agreement.
Appears in 1 contract
Samples: Indenture (GOLUB CAPITAL BDC, Inc.)
Money for Debt Payments to be Held in Trust. All payments or distributions of amounts due and payable with respect to any Debt Securities that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer by the Collateral Trustee or a Paying Agent (and, in the case of the Class A-LR A-1L-1 Loans or the Class A-1L-2 Loans, the Loan Agent) as with respect to payments or distributions on the Debt. Money for Note Payments to be Held in Trust. All payments of amounts due and payable with respect to any Secured Debt and Subordinated Securities that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer (and, in the case of the Co-Issued Debt, the Issuers) by the Collateral Trustee or a Paying Agent with respect to payments or distributions on the Secured Debt and Subordinated Securities. When the IssuersIssuer Issuer shall have a Paying Agent that is not also the Registrar, the IssuersIssuer Issuer shall furnish, or cause the Registrar to furnish, no later than the fifth calendar day after each Record Date a list, if necessary, in such form as such Paying Agent may reasonably request, of the names and addresses of the Holders and of the certificate numbers of individual Notes held by each such Holder. Whenever the IssuersIssuer Issuer shall have a Paying Agent other than the Collateral Trustee, the IssuersIssuer Issuer shall, on or before the Business Day next preceding each Payment Date and on any Redemption Date, as the case may be, direct the Collateral Trustee to deposit on such Payment Date or such Redemption Date, as the case may be, with such Paying Agent, if necessary, an aggregate sum sufficient to pay the amounts then becoming due (to the extent funds are then available for such purpose in the Payment Account), such sum to be held in trust for the benefit of the Persons entitled thereto and (unless such Paying Agent is the Collateral Trustee) the IssuersIssuer Issuer shall promptly notify the Collateral Trustee of its action or failure so to act. Any Monies deposited with a Paying Agent (other than the Collateral Trustee) in excess of an amount sufficient to pay the amounts then becoming due on the Secured Debt and Subordinated Securities with respect to which such deposit was made shall be paid over by such Paying Agent to the Collateral Trustee for application in accordance with Article XI. The initial Paying Agent shall be as set forth in Section 7.2. Any additional or successor Paying Agents shall be appointed by Issuer Order with written notice thereof to the Collateral Trustee; provided that, with respect to any additional or successor Paying Agent, (x) so long as the NotesSecured Debt of any Class are rated by S&P either (i) such Paying Agent has a long-term debtissuer issuer credit rating of ““A+”” or higher by S&P or a short-term debt rating of ““A-1”” by S&P or (ii) the S&P Rating Condition is satisfied. If such successor Paying Agent ceases to have any such minimum rating specified in clause (i) of the immediately preceding sentence, the Issuer shall promptly remove such Paying Agent and appoint a successor Paying Agent. The IssuersIssuer Issuer shall not appoint any Paying Agent that is not, at the time of such appointment, a depository institution or trust company subject to supervision and examination by federal and/or state and/or national banking authorities. The IssuersIssuer Issuer shall cause each Paying Agent other than the Collateral Trustee to execute and deliver to the Collateral Trustee an instrument in which such Paying Agent shall agree with the Collateral Trustee and if the Collateral Trustee acts as Paying Agent, it hereby so agrees, subject to the provisions of this Section 7.3, that such Paying Agent will:
(a) allocate all sums received for payment to the Holders of Secured Debt or Subordinated Securities for which it acts as Paying Agent on each Payment Date and any Redemption Date among such Persons in the proportion specified in the applicable Distribution Report to the extent permitted by applicable law;
(b) hold all sums held by it for the payment of amounts due with respect to the Secured Debt or Subordinated Securities in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;
(c) if such Paying Agent is not the Collateral Trustee, immediately resign as a Paying Agent and forthwith pay to the Collateral Trustee all sums held by it in trust for the payment of the Secured Debt or Subordinated Securities if at any time it ceases to meet the standards set forth above required to be met by a Paying Agent at the time of its appointment;
(d) if such Paying Agent is not the Collateral Trustee, immediately give the Collateral Trustee notice of any default by the Issuer in the making of any payment required to be made; and
(e) if such Paying Agent is not the Collateral Trustee, during the continuance of any such default, upon the written request of the Collateral Trustee, forthwith pay to the Collateral Trustee all sums so held in trust by such Paying Agent. The IssuersIssuer Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Collateral Trustee all sums held in trust by the IssuersIssuer Issuer or such Paying Agent, such sums to be held by the Collateral Trustee upon the same trusts as those upon which such sums were held by the IssuersIssuer Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the Collateral Trustee, such Paying Agent shall be released from all further liability with respect to such Money. Except as otherwise required by applicable law, any Money deposited with the Collateral Trustee or any Paying Agent in trust for any payment on any Secured Debt or Subordinated Securities and remaining unclaimed for two years after such amount has become due and payable shall be paid to the Issuer on Issuer Order; and the Holder of such Secured Debt or Subordinated Securities shall thereafter, as an unsecured general creditor, look only to the Issuer for payment of such amounts (but only to the extent of the amounts so paid to the Issuer) and all liability of the Collateral Trustee or such Paying Agent with respect to such trust Money shall thereupon cease. The Collateral Trustee or such Paying Agent, before being required to make any such release of payment, may, but shall not be required to, adopt and employ, at the expense of the IssuersIssuer Issuer any reasonable means of notification of such release of payment, including, but not limited to, mailing notice of such release to Holders whose Secured Debt or Subordinated Securitieshas Securities have been called but have not been surrendered for redemption or whose right to or interest in Monies due and payable but not claimed is determinable from the records of any Paying Agent, at the last address of record of each such Holder.
(a) EachExistence of the Issuer and Co-Issuer.
(a) The Issuer shall take all reasonable steps to maintain its identity as a separate legal entity from that of its shareholders or members, as applicable. Each of theThe Issuer and the Co-Issuer shall keep its registered office or principal place of business (as the case may be) in the same city, state and country indicated in the address specified in Section 14.3. Each of theThe Issuer and the Co-Issuer shall keep separate books and records and shall not commingle its respective funds with those of any other Person. The Issuer and the Co-Issuer shall keep in full force and effect theirits rights and franchises as a company incorporated under the laws of the Cayman Islands and as a limited liability company organized under the laws of the State of Delaware, respectively, shall comply with the provisions of their respectiveits Organizational Documents and shall obtain and preserve theirits qualification to do business as foreign corporations in each jurisdiction in which such qualifications are or shall be necessary to protect the validity and enforceability of this Indenture, the Secured Debt or Subordinated Securities, the Credit Agreement, or any of the Assets; provided, however, that, subject to Cayman IslandsDelaware law, the Issuer shall be entitled to change its jurisdiction of incorporationformation from the Cayman IslandsDelaware to any other jurisdiction reasonably selected by the Issuer and approved by a Majority of the Subordinated SecuritiesPreferred Shares in accordance with the Limited Liability Company Agreement, so long as (x) (i) the Issuer 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 Issuer, which notice shall be promptly forwarded by the Collateral Trustee to the Holders, the Collateral Manager and the Rating Agency, and (iii) the S&P Rating Condition is satisfied and (iv) 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)(xxix).
(b) Each of the Issuer and the Co-The Issuer shall (i) ensure that all corporate (or, in the case of the Co-Issuer, limited liability company) or other formalities regarding its existence (including, to the extent required by applicable law, holding regular board of directors’, partners’, member’s, manager andmembers’, managers’ and shareholders’ or other similar meetings) are followed, (ii) conduct business in its own name, (iii) correct any known misunderstanding as to its separate existence, (iv) maintain separate financial statements (if any), (v) maintain an arm’s-length relationship with any Affiliates, (vi) maintain adequate capital in light of its contemplated business operations and, (vii) not commingle its funds with those of any other entity. Neither the Issuer nor the Co-Issuer shall and (viii) pay its own liabilities out of its own funds. The Issuer shall not take any action, or conduct its affairs in a manner, that is likely to result in its separate existence being 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 Issuer shall not have any subsidiaries (other than the Co-Issuer and any subsidiaries necessitated by a change of jurisdiction pursuant to clause (a), subject to satisfaction of the S&P Rating Condition in the case of such clause (a)), and (ii) the Co-Issuer shall not have any subsidiaries and (iii) the Issuer and the Co-Issuer shall not (A) have any employees (other than their respectiveits directors, manager and officers) to the extent they are employees, (B) engage in any transaction with any shareholder, member or partner that would constitute a conflict of interest (provided that each Transaction Document shall not be deemed to be such a transaction that would constitute a conflict of interest) or (C) pay dividends or make distributions to its owners other than in accordance with the provisions of this Indenture. This Section 7.4(b) shall not be binding to the extent inconsistent with the status of the Issuer as an entity disregarded from its sole owner for U.S. federal income tax purposes.
(c) The Co-IssuerIssuer will at all times have at least one Independent manager under the Limited Liability Company Agreement.
Appears in 1 contract
Samples: Indenture and Security Agreement (Blue Owl Credit Income Corp.)
Money for Debt Payments to be Held in Trust. All payments or distributions of amounts due and payable with respect to any Debt Securities that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer by the Collateral Trustee or a Paying Agent (and, in the case of the Class A-LR L Loans, the Loan Agent) as with respect to payments or distributions on the Debt. Money for Note Payments to be Held in Trust. All payments of amounts due and payable with respect to any Secured Debt and Subordinated Securities that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer (and, in the case of the Co-Issued Debt, the Issuers) by the Collateral Trustee or a Paying Agent with respect to payments or distributions on the Secured Debt and Subordinated Securities. When the IssuersIssuer Issuer shall have a Paying Agent that is not also the Registrar, the IssuersIssuer Issuer shall furnish, or cause the Registrar to furnish, no later than the fifth calendar day after each Record Date a list, if necessary, in such form as such Paying Agent may reasonably request, of the names and addresses of the Holders and of the certificate numbers of individual Notes held by each such Holder. Whenever the IssuersIssuer Issuer shall have a Paying Agent other than the Collateral Trustee, the IssuersIssuer Issuer shall, on or before the Business Day next preceding each Payment Date and on any Redemption Date, as the case may be, direct the Collateral Trustee to deposit on such Payment Date or such Redemption Date, as the case may be, with such Paying Agent, if necessary, an aggregate sum sufficient to pay the amounts then becoming due (to the extent funds are then available for such purpose in the Payment Account), such sum to be held in trust for the benefit of the Persons entitled thereto and (unless such Paying Agent is the Collateral Trustee) the IssuersIssuer Issuer shall promptly notify the Collateral Trustee of its action or failure so to act. Any Monies deposited with a Paying Agent (other than the Collateral Trustee) in excess of an amount sufficient to pay the amounts then becoming due on the Secured Debt and Subordinated Securities with respect to which such deposit was made shall be paid over by such Paying Agent to the Collateral Trustee for application in accordance with Article XI. The initial Paying Agent shall be as set forth in Section 7.2. Any additional or successor Paying Agents shall be appointed by Issuer Order with written notice thereof to the Collateral Trustee; provided that, with respect to any additional or successor Paying Agent, (x) so long as the NotesSecured Debt of any Class are rated by S&P either (i) such Paying Agent has a long-term debtissuer issuer credit rating of ““A+”” or higher by S&P or a short-term debt rating of ““A-1”” by S&P or (ii) the S&P Rating Condition is satisfied. If such successor Paying Agent ceases to have any such minimum rating specified in clause (i) of the immediately preceding sentence, the Issuer shall promptly remove such Paying Agent and appoint a successor Paying Agent. The IssuersIssuer Issuer shall not appoint any Paying Agent that is not, at the time of such appointment, a depository institution or trust company subject to supervision and examination by federal and/or state and/or national banking authorities. The IssuersIssuer Issuer shall cause each Paying Agent other than the Collateral Trustee to execute and deliver to the Collateral Trustee an instrument in which such Paying Agent shall agree with the Collateral Trustee and if the Collateral Trustee acts as Paying Agent, it hereby so agrees, subject to the provisions of this Section 7.3, that such Paying Agent will:
(a) allocate all sums received for payment to the Holders of Secured Debt or Subordinated Securities for which it acts as Paying Agent on each Payment Date and any Redemption Date among such Persons in the proportion specified in the applicable Distribution Report to the extent permitted by applicable law;
(b) hold all sums held by it for the payment of amounts due with respect to the Secured Debt or Subordinated Securities in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;
(c) if such Paying Agent is not the Collateral Trustee, immediately resign as a Paying Agent and forthwith pay to the Collateral Trustee all sums held by it in trust for the payment of the Secured Debt or Subordinated Securities if at any time it ceases to meet the standards set forth above required to be met by a Paying Agent at the time of its appointment;
(d) if such Paying Agent is not the Collateral Trustee, immediately give the Collateral Trustee notice of any default by the Issuer in the making of any payment required to be made; and
(e) if such Paying Agent is not the Collateral Trustee, during the continuance of any such default, upon the written request of the Collateral Trustee, forthwith pay to the Collateral Trustee all sums so held in trust by such Paying Agent. The IssuersIssuer Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Collateral Trustee all sums held in trust by the IssuersIssuer Issuer or such Paying Agent, such sums to be held by the Collateral Trustee upon the same trusts as those upon which such sums were held by the IssuersIssuer Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the Collateral Trustee, such Paying Agent shall be released from all further liability with respect to such Money. Except as otherwise required by applicable law, any Money deposited with the Collateral Trustee or any Paying Agent in trust for any payment on any Secured Debt or Subordinated Securities and remaining unclaimed for two years after such amount has become due and payable shall be paid to the Issuer on Issuer Order; and the Holder of such Secured Debt or Subordinated Securities shall thereafter, as an unsecured general creditor, look only to the Issuer for payment of such amounts (but only to the extent of the amounts so paid to the Issuer) and all liability of the Collateral Trustee or such Paying Agent with respect to such trust Money shall thereupon cease. The Collateral Trustee or such Paying Agent, before being required to make any such release of payment, may, but shall not be required to, adopt and employ, at the expense of the IssuersIssuer Issuer any reasonable means of notification of such release of payment, including, but not limited to, mailing notice of such release to Holders whose Secured Debt or Subordinated Securitieshas Securities have been called but have not been surrendered for redemption or whose right to or interest in Monies due and payable but not claimed is determinable from the records of any Paying Agent, at the last address of record of each such Holder.
(a) EachExistence of the Issuer and Co-Issuer.
(a) The Issuer shall take all reasonable steps to maintain its identity as a separate legal entity from that of its shareholders or members, as applicable. Each of theThe Issuer and the Co-Issuer shall keep its registered office or principal place of business (as the case may be) in the same city, state and country indicated in the address specified in Section 14.3. Each of theThe Issuer and the Co-Issuer shall keep separate books and records and shall not commingle its respective funds with those of any other Person. The Issuer and the Co-Issuer shall keep in full force and effect theirits rights and franchises as a company incorporated under the laws of the Cayman Islands and as a limited liability company organized under the laws of the State of Delaware, respectively, shall comply with the provisions of their respectiveits Organizational Documents and shall obtain and preserve theirits qualification to do business as foreign corporations in each jurisdiction in which such qualifications are or shall be necessary to protect the validity and enforceability of this Indenture, the Secured Debt or Subordinated Securities, the Credit Agreement, or any of the Assets; provided, however, that, subject to Cayman IslandsDelaware law, the Issuer shall be entitled to change its jurisdiction of incorporationformation from the Cayman IslandsDelaware to any other jurisdiction reasonably selected by the Issuer and approved by a Majority of the Subordinated SecuritiesPreferred Shares in accordance with the Limited Liability Company Agreement, so long as (x) (i) the Issuer 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 Issuer, which notice shall be promptly forwarded by the Collateral Trustee to the Holders, the Collateral Manager and the Rating Agency, and (iii) the S&P Rating Condition is satisfied and (iv) 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)(xxix).
(b) Each of the Issuer and the Co-The Issuer shall (i) ensure that all corporate (or, in the case of the Co-Issuer, limited liability company) or other formalities regarding its existence (including, to the extent required by applicable law, holding regular board of directors’, partners’, member’s, manager andmembers’, managers’ and shareholders’ or other similar meetings) are followed, (ii) conduct business in its own name, (iii) correct any known misunderstanding as to its separate existence, (iv) maintain separate financial statements (if any), (v) maintain an arm’s-length relationship with any Affiliates, (vi) maintain adequate capital in light of its contemplated business operations and, (vii) not commingle its funds with those of any other entity. Neither the Issuer nor the Co-Issuer shall and (viii) pay its own liabilities out of its own funds. The Issuer shall not take any action, or conduct its affairs in a manner, that is likely to result in its separate existence being 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 Issuer shall not have any subsidiaries (other than the Co-Issuer and any subsidiaries necessitated by a change of jurisdiction pursuant to clause (a), subject to satisfaction of the S&P Rating Condition in the case of such clause (a)), and (ii) the Co-Issuer shall not have any subsidiaries and (iii) the Issuer and the Co-Issuer shall not (A) have any employees (other than their respectiveits directors, manager and officers) to the extent they are employees, (B) engage in any transaction with any shareholder, member or partner that would constitute a conflict of interest (provided that each Transaction Document shall not be deemed to be such a transaction that would constitute a conflict of interest) or (C) pay dividends or make distributions to its owners other than in accordance with the provisions of this Indenture. This Section 7.4(b) shall not be binding to the extent inconsistent with the status of the Issuer as an entity disregarded from its sole owner for U.S. federal income tax purposes.
(c) The Co-IssuerIssuer will at all times have at least one Independent manager under the Limited Liability Company Agreement.
Appears in 1 contract
Samples: Indenture and Security Agreement (Owl Rock Core Income Corp.)
Money for Debt Payments to be Held in Trust. All payments or distributions of amounts due and payable with respect to any Debt that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer by the Collateral Trustee or a Paying Agent with respect to payments on the Notes (and, in the case of the Class A-LR A-2 Loans and the Class B Loans, the Loan Agent) as with respect to payments or distributions on the Debt. Money for Note Payments to be Held in Trust. All payments of amounts due and payable with respect to any Secured Debt and Subordinated Securities that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer (and, in the case of the Co-Issued Debt, the Issuers) by the Collateral Trustee or a Paying Agent with respect to payments or distributions on the Secured Debt and Subordinated Securities). When the IssuersIssuer Issuer shall have a Paying Agent that is not also the Registrar, the IssuersIssuer it shall furnish, or cause the Registrar to furnish, no later than the fifth calendar day after each Record Date a list, if necessary, in such form as such Paying Agent may reasonably request, of the names and addresses of the Holders and of the certificate numbers of individual Notes held by each such Holder. Whenever the IssuersIssuer Issuer shall have a Paying Agent other than the Collateral Trustee, the IssuersIssuer it shall, on or before the Business Day next preceding each Payment Date and on any Redemption Date, as the case may be, direct the Collateral Trustee to deposit on such Payment Date or such Redemption Date, as the case may be, with such Paying Agent, if necessary, an aggregate sum sufficient to pay the amounts then becoming due (to the extent funds are then available for such purpose in the Payment Account), such sum to be held in trust for the benefit of the Persons entitled thereto and (unless such Paying Agent is the Collateral Trustee) the IssuersIssuer Issuer shall promptly notify the Collateral Trustee of its action or failure so to act. Any Monies deposited with a Paying Agent (other than the Collateral Trustee) in excess of an amount sufficient to pay the amounts then becoming due on the Secured Debt and Subordinated Securities with respect to which such deposit was made shall be paid over by such Paying Agent to the Collateral Trustee for application in accordance with Article XI. The initial Paying Agent shall be as set forth in Section 7.2. Any additional or successor Paying Agents shall be appointed by Issuer Order with written notice thereof to the Collateral Trustee; provided that, with respect to any additional or successor Paying Agent, (x) so long as the NotesSecured Debt of any Class are rated by S&P either (i) such Paying Agent has a long-term debtissuer credit rating of ““A+”” or higher by S&P or a short-term debt rating of ““A-1”” by S&P or (ii) the S&P Rating Condition is satisfied. If such successor Paying Agent ceases to have any such minimum rating specified in clause (i) of the immediately preceding sentence, the Issuer shall promptly remove such Paying Agent and appoint a successor Paying Agent. The IssuersIssuer shall not appoint any Paying Agent that is not, at the time of such appointment, a depository institution or trust company subject to supervision and examination by federal and/or state and/or national banking authorities. The IssuersIssuer shall cause each Paying Agent other than the Collateral Trustee to execute and deliver to the Collateral Trustee an instrument in which such Paying Agent shall agree with the Collateral Trustee and if the Collateral Trustee acts as Paying Agent, it hereby so agrees, subject to the provisions of this Section 7.3, that such Paying Agent will:
(a) allocate all sums received for payment to the Holders of Secured Debt or Subordinated Securities for which it acts as Paying Agent on each Payment Date and any Redemption Date among such Persons in the proportion specified in the applicable Distribution Report to the extent permitted by applicable law;
(b) hold all sums held by it for the payment of amounts due with respect to the Secured Debt or Subordinated Securities in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;
(c) if such Paying Agent is not the Collateral Trustee, immediately resign as a Paying Agent and forthwith pay to the Collateral Trustee all sums held by it in trust for the payment of the Secured Debt or Subordinated Securities if at any time it ceases to meet the standards set forth above required to be met by a Paying Agent at the time of its appointment;
(d) if such Paying Agent is not the Collateral Trustee, immediately give the Collateral Trustee notice of any default by the Issuer in the making of any payment required to be made; and
(e) if such Paying Agent is not the Collateral Trustee, during the continuance of any such default, upon the written request of the Collateral Trustee, forthwith pay to the Collateral Trustee all sums so held in trust by such Paying Agent. The IssuersIssuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Collateral Trustee all sums held in trust by the IssuersIssuer or such Paying Agent, such sums to be held by the Collateral Trustee upon the same trusts as those upon which such sums were held by the IssuersIssuer or such Paying Agent; and, upon such payment by any Paying Agent to the Collateral Trustee, such Paying Agent shall be released from all further liability with respect to such Money. Except as otherwise required by applicable law, any Money deposited with the Collateral Trustee or any Paying Agent in trust for any payment on any Secured Debt or Subordinated Securities and remaining unclaimed for two years after such amount has become due and payable shall be paid to the Issuer on Issuer Order; and the Holder of such Secured Debt or Subordinated Securities shall thereafter, as an unsecured general creditor, look only to the Issuer for payment of such amounts (but only to the extent of the amounts so paid to the Issuer) and all liability of the Collateral Trustee or such Paying Agent with respect to such trust Money shall thereupon cease. The Collateral Trustee or such Paying Agent, before being required to make any such release of payment, may, but shall not be required to, adopt and employ, at the expense of the IssuersIssuer any reasonable means of notification of such release of payment, including, but not limited to, mailing notice of such release to Holders whose Secured Debt or Subordinated Securitieshas been called but have not been surrendered for redemption or whose right to or interest in Monies due and payable but not claimed is determinable from the records of any Paying Agent, at the last address of record of each such Holder.
(a) EachExistence of the Issuer and Co-Issuer.
(a) The Issuer shall take all reasonable steps to maintain its identity as a separate legal entity from that of its shareholders or members, as applicable. Each of theThe Issuer and the Co-Issuer shall keep its registered office or principal place of business (as the case may be) in the same city, state and country indicated in the address specified in Section 14.3. Each of theThe Issuer and the Co-Issuer shall keep separate books and records and shall not commingle its respective funds with those of any other Person. The Issuer and the Co-Issuer shall keep in full force and effect theirits rights and franchises as a company incorporated under the laws of the Cayman Islands and as a limited liability company organized under the laws of the State of Delaware, respectively, shall comply with the provisions of their respectiveits Organizational Documents and shall obtain and preserve theirits qualification to do business as foreign corporations in each jurisdiction in which such qualifications are or shall be necessary to protect the validity and enforceability of this Indenture, the Secured Debt or Subordinated Securities, the Credit Agreement, or any of the Assets; provided, however, that, subject to Cayman IslandsDelaware law, the Issuer shall be entitled to change its jurisdiction of incorporationformation from the Cayman IslandsDelaware to any other jurisdiction reasonably selected by the Issuer and approved by a Majority of the Subordinated SecuritiesPreferred Shares in accordance with the Limited Liability Company Agreement, so long as (x) (i) the Issuer 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 Issuer, which notice shall be promptly forwarded by the Collateral Trustee to the Holders, the Collateral Manager and the Rating Agency, and (iii) the S&P Rating Condition is satisfied and (iv) 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)(xxix).
(b) Each of the Issuer and the Co-The Issuer shall (i) ensure that all corporate (or, in the case of the Co-Issuer, limited liability company) or other formalities regarding its existence (including, to the extent required by applicable law, holding regular board of directors’, partners’, member’s, manager andmembers’, managers’ and shareholders’ or other similar meetings) are followed, (ii) conduct business in its own name, (iii) correct any known misunderstanding as to its separate existence, (iv) maintain separate financial statements (if any), (v) maintain an arm’s-length relationship with any Affiliates, (vi) maintain adequate capital in light of its contemplated business operations and, (vii) not commingle its funds with those of any other entity. Neither the Issuer nor the Co-Issuer shall and (viii) pay its own liabilities out of its own funds. The Issuer shall not take any action, or conduct its affairs in a manner, that is likely to result in its separate existence being 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 Issuer shall not have any subsidiaries (other than the Co-Issuer and any subsidiaries necessitated by a change of jurisdiction pursuant to clause (a), subject to satisfaction of the S&P Rating Condition in the case of such clause (a)), and (ii) the Co-Issuer shall not have any subsidiaries and (iii) the Issuer and the Co-Issuer shall not (A) have any employees (other than their respectiveits directors, manager and officers) to the extent they are employees, (B) engage in any transaction with any shareholder, member or partner that would constitute a conflict of interest (provided that each Transaction Document shall not be deemed to be such a transaction that would constitute a conflict of interest) or (C) pay dividends or make distributions to its owners other than in accordance with the provisions of this Indenture. This Section 7.4(b) shall not be binding to the extent inconsistent with the status of the Issuer as an entity disregarded from its sole owner for U.S. federal income tax purposes.
(c) The Co-IssuerIssuer will at all times have at least one Independent manager under the Limited Liability Company Agreement.X.
Appears in 1 contract
Samples: Indenture and Security Agreement (Varagon Capital Corp)
Money for Debt Payments to be Held in Trust. All payments or distributions of amounts due and payable with respect to any Debt that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer by the Collateral Trustee or a Paying Agent (and, in the case of the Class A-LR A-1L Loans, the Loan Agent) as with respect to payments or distributions on the Debt. Money for Note Payments to be Held in Trust. All payments of amounts due and payable with respect to any Secured Debt and Subordinated Securities that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of When the Issuer (and, in the case of the Co-Issued Debt, the Issuers) by the Collateral Trustee or a Paying Agent with respect to payments or distributions on the Secured Debt and Subordinated Securities. When the IssuersIssuer shall have a Paying Agent that is not also the Registrar, the IssuersIssuer Issuer shall furnish, or cause the Registrar to furnish, no later than the fifth calendar day after each Record Date a list, if necessary, in such form as such Paying Agent may reasonably request, of the names and addresses of the Holders and of the certificate numbers of individual Notes held by each such Holder. Whenever the IssuersIssuer Issuer shall have a Paying Agent other than the Collateral Trustee, the IssuersIssuer Issuer shall, on or before the Business Day next preceding each Payment Date and on any Redemption Date, as the case may be, direct the Collateral Trustee to deposit on such Payment Date or such Redemption Date, as the case may be, with such Paying Agent, if necessary, an aggregate sum sufficient to pay the amounts then becoming due (to the extent funds are then available for such purpose in the Payment Account), such sum to be held in trust for the benefit of the Persons entitled thereto and (unless such Paying Agent is the Collateral Trustee) the IssuersIssuer Issuer shall promptly notify the Collateral Trustee of its action or failure so to act. Any Monies deposited with a Paying Agent (other than the Collateral Trustee) in excess of an amount sufficient to pay the amounts then becoming due on the Secured Debt and Subordinated Securities with respect to which such deposit was made shall be paid over by such Paying Agent to the Collateral Trustee for application in accordance with Article XI. The initial Paying Agent shall be as set forth in Section 7.2. Any additional or successor Paying Agents shall be appointed by Issuer Order with written notice thereof to the Collateral Trustee; provided that, with respect to any additional or successor Paying Agent, (x) so long as the NotesSecured Secured Debt of any Class are rated by S&P either (i) such Paying Agent has a long-term debtissuer issuer credit rating of ““A+”” or higher by S&P or a short-term debt rating of ““A-1”” by S&P or (ii) the S&P Rating Condition is satisfied. If such successor Paying Agent ceases to have any such minimum rating specified in clause (i) of the immediately preceding sentence, the Issuer shall promptly remove such Paying Agent and appoint a successor Paying Agent. The IssuersIssuer Issuer shall not appoint any Paying Agent that is not, at the time of such appointment, a depository institution or trust company subject to supervision and examination by federal and/or state and/or national banking authorities. The IssuersIssuer Issuer shall cause each Paying Agent other than the Collateral Trustee to execute and deliver to the Collateral Trustee an instrument in which such Paying Agent shall agree with the Collateral Trustee and if the Collateral Trustee acts as Paying Agent, it hereby so agrees, subject to the provisions of this Section 7.3, that such Paying Agent will:
(a) allocate all sums received for payment to the Holders of Secured Debt or Subordinated Securities for which it acts as Paying Agent on each Payment Date and any Redemption Date among such Persons in the proportion specified in the applicable Distribution Report to the extent permitted by applicable law;
(b) hold all sums held by it for the payment of amounts due with respect to the Secured Debt or Subordinated Securities in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;
(c) if such Paying Agent is not the Collateral Trustee, immediately resign as a Paying Agent and forthwith pay to the Collateral Trustee all sums held by it in trust for the payment of the Secured Debt or Subordinated Securities if at any time it ceases to meet the standards set forth above required to be met by a Paying Agent at the time of its appointment;
(d) if such Paying Agent is not the Collateral Trustee, immediately give the Collateral Trustee notice of any default by the Issuer in the making of any payment required to be made; and
(e) if such Paying Agent is not the Collateral Trustee, during the continuance of any such default, upon the written request of the Collateral Trustee, forthwith pay to the Collateral Trustee all sums so held in trust by such Paying Agent. The IssuersIssuer Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Collateral Trustee all sums held in trust by the IssuersIssuer Issuer or such Paying Agent, such sums to be held by the Collateral Trustee upon the same trusts as those upon which such sums were held by the IssuersIssuer Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the Collateral Trustee, such Paying Agent shall be released from all further liability with respect to such Money. Except as otherwise required by applicable law, any Money deposited with the Collateral Trustee or any Paying Agent in trust for any payment on any Secured Debt or Subordinated Securities and remaining unclaimed for two years after such amount has become due and payable shall be paid to the Issuer on Issuer Order; and the Holder of such Secured Debt or Subordinated Securities shall thereafter, as an unsecured general creditor, look only to the Issuer for payment of such amounts (but only to the extent of the amounts so paid to the Issuer) and all liability of the Collateral Trustee or such Paying Agent with respect to such trust Money shall thereupon cease. The Collateral Trustee or such Paying Agent, before being required to make any such release of payment, may, but shall not be required to, adopt and employ, at the expense of the IssuersIssuer Issuer any reasonable means of notification of such release of payment, including, but not limited to, mailing notice of such release to Holders whose Secured Debt or Subordinated Securitieshas have been called but have not been surrendered for redemption or whose right to or interest in Monies due and payable but not claimed is determinable from the records of any Paying Agent, at the last address of record of each such Holder.
(a) EachExistence of the Issuer and Co-Issuer.
(a) The Issuer shall take all reasonable steps to maintain its identity as a separate legal entity from that of its shareholders or members, as applicable. Each of theThe Issuer and the Co-Issuer shall keep its registered office or principal place of business (as the case may be) in the same city, state and country indicated in the address specified in Section 14.3. Each of theThe Issuer and the Co-Issuer shall keep separate books and records and shall not commingle its respective funds with those of any other Person. The Issuer and the Co-Issuer shall keep in full force and effect theirits rights and franchises as a company incorporated under the laws of the Cayman Islands and as a limited liability company organized under the laws of the State of Delaware, respectively, shall comply with the provisions of their respectiveits Organizational Documents and shall obtain and preserve theirits qualification to do business as foreign corporations in each jurisdiction in which such qualifications are or shall be necessary to protect the validity and enforceability of this Indenture, the Secured Debt or Subordinated Securities, the Credit Agreement, or any of the Assets; provided, however, that, subject to Cayman IslandsDelaware law, the Issuer shall be entitled to change its jurisdiction of incorporationformation from the Cayman IslandsDelaware to any other jurisdiction reasonably selected by the Issuer and approved by a Majority of the Subordinated SecuritiesPreferred Shares in accordance with the Limited Liability Company Agreement, so long as (x) (i) the Issuer 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 Issuer, which notice shall be promptly forwarded by the Collateral Trustee to the Holders, the Collateral Manager and the Rating Agency, and (iii) the S&P Rating Condition is satisfied and (iv) 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)(xxix).
(b) Each of the Issuer and the Co-The Issuer shall (i) ensure that all corporate (or, in the case of the Co-Issuer, limited liability company) or other formalities regarding its existence (including, to the extent required by applicable law, holding regular board of directors’, partners’, member’s, manager andmembers’, managers’ and shareholders’ or other similar meetings) are followed, (ii) conduct business in its own name, (iii) correct any known misunderstanding as to its separate existence, (iv) maintain separate financial statements (if any), (v) maintain an arm’s-length relationship with any Affiliates, (vi) maintain adequate capital in light of its contemplated business operations and, (vii) not commingle its funds with those of any other entity. Neither the Issuer nor the Co-Issuer shall and (viii) pay its own liabilities out of its own funds. The Issuer shall not take any action, or conduct its affairs in a manner, that is likely to result in its separate existence being 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 Issuer shall not have any subsidiaries (other than the Co-Issuer and any subsidiaries necessitated by a change of jurisdiction pursuant to clause (a), subject to satisfaction of the S&P Rating Condition in the case of such clause (a)), and (ii) the Co-Issuer shall not have any subsidiaries and (iii) the Issuer and the Co-Issuer shall not (A) have any employees (other than their respectiveits directors, manager and officers) to the extent they are employees, (B) engage in any transaction with any shareholder, member or partner that would constitute a conflict of interest (provided that each Transaction Document shall not be deemed to be such a transaction that would constitute a conflict of interest) or (C) pay dividends or make distributions to its owners other than in accordance with the provisions of this Indenture. This Section 7.4(b) shall not be binding to the extent inconsistent with the status of the Issuer as an entity disregarded from its sole owner for U.S. federal income tax purposes.
(c) The Co-IssuerIssuer will at all times have at least one Independent manager under the Limited Liability Company Agreement.
Appears in 1 contract
Samples: Indenture and Security Agreement (Blue Owl Credit Income Corp.)
Money for Debt Payments to be Held in Trust. All payments or distributions of amounts due and payable with respect to any Debt that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer by the Collateral Trustee or a Paying Agent (and, in the case of the Class A-LR L Loans, the Loan Agent) as with respect to payments or distributions on the Debt. Money for Note Payments to be Held in Trust. All payments of amounts due and payable with respect to any Secured Debt and Subordinated Securities that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of When the Issuer (and, in the case of the Co-Issued Debt, the Issuers) by the Collateral Trustee or a Paying Agent with respect to payments or distributions on the Secured Debt and Subordinated Securities. When the IssuersIssuer shall have a Paying Agent that is not also the Registrar, the IssuersIssuer Issuer shall furnish, or cause the Registrar to furnish, no later than the fifth calendar day after each Record Date a list, if necessary, in such form as such Paying Agent may reasonably request, of the names and addresses of the Holders and of the certificate numbers of individual Notes held by each such Holder. Whenever the IssuersIssuer Issuer shall have a Paying Agent other than the Collateral Trustee, the IssuersIssuer Issuer shall, on or before the Business Day next preceding each Payment Date and on any Redemption Date, as the case may be, direct the Collateral Trustee to deposit on such Payment Date or such Redemption Date, as the case may be, with such Paying Agent, if necessary, an aggregate sum sufficient to pay the amounts then becoming due (to the extent funds are then available for such purpose in the Payment Account), such sum to be held in trust for the benefit of the Persons entitled thereto and (unless such Paying Agent is the Collateral Trustee) the IssuersIssuer Issuer shall promptly notify the Collateral Trustee of its action or failure so to act. Any Monies deposited with a Paying Agent (other than the Collateral Trustee) in excess of an amount sufficient to pay the amounts then becoming due on the Secured Debt and Subordinated Securities with respect to which such deposit was made shall be paid over by such Paying Agent to the Collateral Trustee for application in accordance with Article XI. The initial Paying Agent shall be as set forth in Section 7.2. Any additional or successor Paying Agents shall be appointed by Issuer Order with written notice thereof to the Collateral Trustee; provided that, with respect to any additional or successor Paying Agent, (x) so long as the NotesSecured Secured Debt of any Class are rated by S&P either (i) such Paying Agent has a long-term debtissuer issuer credit rating of ““A+”” or higher by S&P or a short-term debt rating of ““A-1”” by S&P or (ii) the S&P Rating Condition is satisfied. If such successor Paying Agent ceases to have any such minimum rating specified in clause (i) of the immediately preceding sentence, the Issuer shall promptly remove such Paying Agent and appoint a successor Paying Agent. The IssuersIssuer Issuer shall not appoint any Paying Agent that is not, at the time of such appointment, a depository institution or trust company subject to supervision and examination by federal and/or state and/or national banking authorities. The IssuersIssuer Issuer shall cause each Paying Agent other than the Collateral Trustee to execute and deliver to the Collateral Trustee an instrument in which such Paying Agent shall agree with the Collateral Trustee and if the Collateral Trustee acts as Paying Agent, it hereby so agrees, subject to the provisions of this Section 7.3, that such Paying Agent will:
(a) allocate all sums received for payment to the Holders of Secured Debt or Subordinated Securities for which it acts as Paying Agent on each Payment Date and any Redemption Date among such Persons in the proportion specified in the applicable Distribution Report to the extent permitted by applicable law;
(b) hold all sums held by it for the payment of amounts due with respect to the Secured Debt or Subordinated Securities in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;
(c) if such Paying Agent is not the Collateral Trustee, immediately resign as a Paying Agent and forthwith pay to the Collateral Trustee all sums held by it in trust for the payment of the Secured Debt or Subordinated Securities if at any time it ceases to meet the standards set forth above required to be met by a Paying Agent at the time of its appointment;
(d) if such Paying Agent is not the Collateral Trustee, immediately give the Collateral Trustee notice of any default by the Issuer in the making of any payment required to be made; and
(e) if such Paying Agent is not the Collateral Trustee, during the continuance of any such default, upon the written request of the Collateral Trustee, forthwith pay to the Collateral Trustee all sums so held in trust by such Paying Agent. The IssuersIssuer Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Collateral Trustee all sums held in trust by the IssuersIssuer Issuer or such Paying Agent, such sums to be held by the Collateral Trustee upon the same trusts as those upon which such sums were held by the IssuersIssuer Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the Collateral Trustee, such Paying Agent shall be released from all further liability with respect to such Money. Except as otherwise required by applicable law, any Money deposited with the Collateral Trustee or any Paying Agent in trust for any payment on any Secured Debt or Subordinated Securities and remaining unclaimed for two years after such amount has become due and payable shall be paid to the Issuer on Issuer Order; and the Holder of such Secured Debt or Subordinated Securities shall thereafter, as an unsecured general creditor, look only to the Issuer for payment of such amounts (but only to the extent of the amounts so paid to the Issuer) and all liability of the Collateral Trustee or such Paying Agent with respect to such trust Money shall thereupon cease. The Collateral Trustee or such Paying Agent, before being required to make any such release of payment, may, but shall not be required to, adopt and employ, at the expense of the IssuersIssuer Issuer any reasonable means of notification of such release of payment, including, but not limited to, mailing notice of such release to Holders whose Secured Debt or Subordinated Securitieshas have been called but have not been surrendered for redemption or whose right to or interest in Monies due and payable but not claimed is determinable from the records of any Paying Agent, at the last address of record of each such Holder.
(a) EachExistence of the Issuer and Co-Issuer.
(a) The Issuer shall take all reasonable steps to maintain its identity as a separate legal entity from that of its shareholders or members, as applicable. Each of theThe Issuer and the Co-Issuer shall keep its registered office or principal place of business (as the case may be) in the same city, state and country indicated in the address specified in Section 14.3. Each of theThe Issuer and the Co-Issuer shall keep separate books and records and shall not commingle its respective funds with those of any other Person. The Issuer and the Co-Issuer shall keep in full force and effect theirits rights and franchises as a company incorporated under the laws of the Cayman Islands and as a limited liability company organized under the laws of the State of Delaware, respectively, shall comply with the provisions of their respectiveits Organizational Documents and shall obtain and preserve theirits qualification to do business as foreign corporations in each jurisdiction in which such qualifications are or shall be necessary to protect the validity and enforceability of this Indenture, the Secured Debt or Subordinated Securities, the Credit Agreement, or any of the Assets; provided, however, that, subject to Cayman IslandsDelaware law, the Issuer shall be entitled to change its jurisdiction of incorporationformation from the Cayman IslandsDelaware to any other jurisdiction reasonably selected by the Issuer and approved by a Majority of the Subordinated SecuritiesPreferred Shares in accordance with the Limited Liability Company Agreement, so long as (x) (i) the Issuer 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 Issuer, which notice shall be promptly forwarded by the Collateral Trustee to the Holders, the Collateral Manager and the Rating Agency, and (iii) the S&P Rating Condition is satisfied and (iv) 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)(xxix).
(b) Each of the Issuer and the Co-The Issuer shall (i) ensure that all corporate (or, in the case of the Co-Issuer, limited liability company) or other formalities regarding its existence (including, to the extent required by applicable law, holding regular board of directors’, partners’, member’s, manager andmembers’, managers’ and shareholders’ or other similar meetings) are followed, (ii) conduct business in its own name, (iii) correct any known misunderstanding as to its separate existence, (iv) maintain separate financial statements (if any), (v) maintain an arm’s-length relationship with any Affiliates, (vi) maintain adequate capital in light of its contemplated business operations and, (vii) not commingle its funds with those of any other entity. Neither the Issuer nor the Co-Issuer shall and (viii) pay its own liabilities out of its own funds. The Issuer shall not take any action, or conduct its affairs in a manner, that is likely to result in its separate existence being 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 Issuer shall not have any subsidiaries (other than the Co-Issuer and any subsidiaries necessitated by a change of jurisdiction pursuant to clause (a), subject to satisfaction of the S&P Rating Condition in the case of such clause (a)), and (ii) the Co-Issuer shall not have any subsidiaries and (iii) the Issuer and the Co-Issuer shall not (A) have any employees (other than their respectiveits directors, manager and officers) to the extent they are employees, (B) engage in any transaction with any shareholder, member or partner that would constitute a conflict of interest (provided that each Transaction Document shall not be deemed to be such a transaction that would constitute a conflict of interest) or (C) pay dividends or make distributions to its owners other than in accordance with the provisions of this Indenture. This Section 7.4(b) shall not be binding to the extent inconsistent with the status of the Issuer as an entity disregarded from its sole owner for U.S. federal income tax purposes.
(c) The Co-IssuerIssuer will at all times have at least one Independent manager under the Limited Liability Company Agreement.
Appears in 1 contract
Samples: Indenture and Security Agreement (Blue Owl Capital Corp III)
Money for Debt Payments to be Held in Trust. All payments or distributions of amounts due and payable with respect to any Debt Securities that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer by the Collateral Trustee or a Paying Agent (and, in the case of the Class A-LR L Loans, the Loan Agent) as with respect to payments or distributions on the Debt. Money for Note Payments to be Held in Trust. All payments of amounts due and payable with respect to any Secured Debt and Subordinated Securities that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer (and, in the case of the Co-Issued Debt, the Issuers) by the Collateral Trustee or a Paying Agent with respect to payments or distributions on the Secured Debt and Subordinated Securities. When the IssuersIssuer Issuer shall have a Paying Agent that is not also the Registrar, the IssuersIssuer Issuer shall furnish, or cause the Registrar to furnish, no later than the fifth calendar day after each Record Date a list, if necessary, in such form as such Paying Agent may reasonably request, of the names and addresses of the Holders and of the certificate numbers of individual Notes held by each such Holder. Whenever the IssuersIssuer Issuer shall have a Paying Agent other than the Collateral Trustee, the IssuersIssuer Issuer shall, on or before the Business Day next preceding each Payment Date and on any Redemption Date, as the case may be, direct the Collateral Trustee to deposit on such Payment Date or such Redemption Date, as the case may be, with such Paying Agent, if necessary, an aggregate sum sufficient to pay the amounts then becoming due (to the extent funds are then available for such purpose in the Payment Account), such sum to be held in trust for the benefit of the Persons entitled thereto and (unless such Paying Agent is the Collateral Trustee) the IssuersIssuer Issuer shall promptly notify the Collateral Trustee of its action or failure so to act. Any Monies deposited with a Paying Agent (other than the Collateral Trustee) in excess of an amount sufficient to pay the amounts then becoming due on the Secured Debt and Subordinated Securities with respect to which such deposit was made shall be paid over by such Paying Agent to the Collateral Trustee for application in accordance with Article XI. The initial Paying Agent shall be as set forth in Section 7.2. Any additional or successor Paying Agents shall be appointed by Issuer Order with written notice thereof to the Collateral Trustee; provided that, with respect to any additional or successor Paying Agent, (x) so long as the NotesSecured Debt of any Class are rated by S&P either (i) such Paying Agent has a long-term debtissuer issuer credit rating of ““A+”” or higher by S&P or a short-term debt rating of ““A-1”” by S&P or (ii) the S&P Rating Condition is satisfied. If such successor Paying Agent ceases to have any such minimum rating specified in clause (i) of the immediately preceding sentence, the Issuer shall promptly remove such Paying Agent and appoint a successor Paying Agent. The IssuersIssuer Issuer shall not appoint any Paying Agent that is not, at the time of such appointment, a depository institution or trust company subject to supervision and examination by federal and/or state and/or national banking authorities. The IssuersIssuer Issuer shall cause each Paying Agent other than the Collateral Trustee to execute and deliver to the Collateral Trustee an instrument in which such Paying Agent shall agree with the Collateral Trustee and if the Collateral Trustee acts as Paying Agent, it hereby so agrees, subject to the provisions of this Section 7.3, that such Paying Agent will:
(a) allocate all sums received for payment to the Holders of Secured Debt or Subordinated Securities for which it acts as Paying Agent on each Payment Date and any Redemption Date among such Persons in the proportion specified in the applicable Distribution Report to the extent permitted by applicable law;
(b) hold all sums held by it for the payment of amounts due with respect to the Secured Debt or Subordinated Securities in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;
(c) if such Paying Agent is not the Collateral Trustee, immediately resign as a Paying Agent and forthwith pay to the Collateral Trustee all sums held by it in trust for the payment of the Secured Debt or Subordinated Securities if at any time it ceases to meet the standards set forth above required to be met by a Paying Agent at the time of its appointment;
(d) if such Paying Agent is not the Collateral Trustee, immediately give the Collateral Trustee notice of any default by the Issuer in the making of any payment required to be made; and
(e) if such Paying Agent is not the Collateral Trustee, during the continuance of any such default, upon the written request of the Collateral Trustee, forthwith pay to the Collateral Trustee all sums so held in trust by such Paying Agent. The IssuersIssuer Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Collateral Trustee all sums held in trust by the IssuersIssuer Issuer or such Paying Agent, such sums to be held by the Collateral Trustee upon the same trusts as those upon which such sums were held by the IssuersIssuer Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the Collateral Trustee, such Paying Agent shall be released from all further liability with respect to such Money. Except as otherwise required by applicable law, any Money deposited with the Collateral Trustee or any Paying Agent in trust for any payment on any Secured Debt or Subordinated Securities and remaining unclaimed for two years after such amount has become due and payable shall be paid to the Issuer on Issuer Order; and the Holder of such Secured Debt or Subordinated Securities shall thereafter, as an unsecured general creditor, look only to the Issuer for payment of such amounts (but only to the extent of the amounts so paid to the Issuer) and all liability of the Collateral Trustee or such Paying Agent with respect to such trust Money shall thereupon cease. The Collateral Trustee or such Paying Agent, before being required to make any such release of payment, may, but shall not be required to, adopt and employ, at the expense of the IssuersIssuer Issuer any reasonable means of notification of such release of payment, including, but not limited to, mailing notice of such release to Holders whose Secured Debt or Subordinated Securitieshas Securities have been called but have not been surrendered for redemption or whose right to or interest in Monies due and payable but not claimed is determinable from the records of any Paying Agent, at the last address of record of each such Holder.
(a) EachExistence of the Issuer and Co-Issuer.
(a) The Issuer shall take all reasonable steps to maintain its identity as a separate legal entity from that of its shareholders or members, as applicable. Each of theThe Issuer and the Co-Issuer shall keep its registered office or principal place of business (as the case may be) in the same city, state and country indicated in the address specified in Section 14.3. Each of theThe Issuer and the Co-Issuer shall keep separate books and records and shall not commingle its respective funds with those of any other Person. The Issuer and the Co-Issuer shall keep in full force and effect theirits rights and franchises as a company incorporated under the laws of the Cayman Islands and as a limited liability company organized under the laws of the State of Delaware, respectively, shall comply with the provisions of their respectiveits Organizational Documents and shall obtain and preserve theirits qualification to do business as foreign corporations in each jurisdiction in which such qualifications are or shall be necessary to protect the validity and enforceability of this Indenture, the Secured Debt or Subordinated Securities, the Credit Agreement, or any of the Assets; provided, however, that, subject to Cayman IslandsDelaware law, the Issuer shall be entitled to change its jurisdiction of incorporationformation from the Cayman IslandsDelaware to any other jurisdiction reasonably selected by the Issuer and approved by a Majority of the Subordinated SecuritiesPreferred Shares in accordance with the Limited Liability Company Agreement, so long as (x) (i) the Issuer 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 Issuer, which notice shall be promptly forwarded by the Collateral Trustee to the Holders, the Collateral Manager and the Rating Agency, and (iii) the S&P Rating Condition is satisfied and (iv) 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)(xxix).
(b) Each of the Issuer and the Co-The Issuer shall (i) ensure that all corporate (or, in the case of the Co-Issuer, limited liability company) or other formalities regarding its existence (including, to the extent required by applicable law, holding regular board of directors’, partners’, member’s, manager andmembers’, managers’ and shareholders’ or other similar meetings) are followed, (ii) conduct business in its own name, (iii) correct any known misunderstanding as to its separate existence, (iv) maintain separate financial statements (if any), (v) maintain an arm’s-length relationship with any Affiliates, (vi) maintain adequate capital in light of its contemplated business operations and, (vii) not commingle its funds with those of any other entity. Neither the Issuer nor the Co-Issuer shall and (viii) pay its own liabilities out of its own funds. The Issuer shall not take any action, or conduct its affairs in a manner, that is likely to result in its separate existence being 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 Issuer shall not have any subsidiaries (other than the Co-Issuer and any subsidiaries necessitated by a change of jurisdiction pursuant to clause (a), subject to satisfaction of the S&P Rating Condition in the case of such clause (a)), and (ii) the Co-Issuer shall not have any subsidiaries and (iii) the Issuer and the Co-Issuer shall not (A) have any employees (other than their respectiveits directors, manager and officers) to the extent they are employees, (B) engage in any transaction with any shareholder, member or partner that would constitute a conflict of interest (provided that each Transaction Document shall not be deemed to be such a transaction that would constitute a conflict of interest) or (C) pay dividends or make distributions to its owners other than in accordance with the provisions of this Indenture. This Section 7.4(b) shall not be binding to the extent inconsistent with the status of the Issuer as an entity disregarded from its sole owner for U.S. federal income tax purposes.
(c) The Co-IssuerIssuer will at all times have at least one Independent manager under the Limited Liability Company Agreement.
Appears in 1 contract
Samples: Indenture and Security Agreement (Owl Rock Capital Corp)
Money for Debt Payments to be Held in Trust. All payments or distributions of amounts due and payable with respect to any Debt that are is to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer by the Collateral Trustee or a Paying Agent (and, in the case of the Class A-LR Loans, the Loan Agent) as with respect to payments or distributions on the Debt. Money for Note Payments to be Held in Trust. All payments of amounts due and payable with respect to any Secured Debt and Subordinated Securities that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of When the Issuer (and, in the case of the Co-Issued Debt, the Issuers) by the Collateral Trustee or a Paying Agent with respect to payments or distributions on the Secured Debt and Subordinated Securities. When the IssuersIssuer shall have a Paying Agent that is not also the Registrar, the IssuersIssuer it shall furnish, or cause the Registrar to furnish, no later than the fifth calendar day after each Record Date a list, if necessary, in such form as such Paying Agent may reasonably request, of the names and addresses of the Holders and of the certificate numbers of individual Notes held by each such Holder. Whenever the IssuersIssuer Issuer shall have a Paying Agent other than the Collateral Trustee, the IssuersIssuer it shall, on or before the Business Day next preceding each Payment Date and on any Redemption Date, as the case may be, direct the Collateral Trustee to deposit on such Payment Date or such Redemption Date, as the case may be, with such Paying Agent, if necessary, an aggregate sum sufficient to pay the amounts then becoming due (to the extent funds are then available for such purpose in the Payment Account), such sum to be held in trust for the benefit of the Persons entitled thereto and (unless such Paying Agent is the Collateral Trustee) the IssuersIssuer Issuer shall promptly notify the Collateral Trustee of its action or failure so to act. Any Monies deposited with a Paying Agent (other than the Collateral Trustee) in excess of an amount sufficient to pay the amounts then becoming due on the Secured Debt and Subordinated Securities with respect to which such deposit was made shall be paid over by such Paying Agent to the Collateral Trustee for application in accordance with Article XI. The initial Paying Agent shall be as set forth in Section 7.2. Any additional or successor Paying Agents shall be appointed by Issuer Order with written notice thereof to the Collateral Trustee; provided thatthat so long as the Debt of any Class is rated by the Rating Agency, with respect to any additional or successor Paying Agent, (x) so long as the NotesSecured Debt of any Class are rated by S&P either (i) such Paying Agent has a long-term debtissuer credit meets the minimum rating of ““A+”” or higher by S&P or a short-term debt rating of ““A-1”” by S&P provided in Section 6.8 or (ii) the S&P Rating Condition is satisfied. If such successor Paying Agent ceases to have any such meet the minimum rating specified provided in clause (i) of the immediately preceding sentenceSection 6.8, the Issuer shall promptly remove such Paying Agent and appoint a successor Paying Agent. The IssuersIssuer Issuer shall not appoint any Paying Agent that is not, at the time of such appointment, a depository institution or trust company subject to supervision and examination by federal and/or state and/or national banking authorities. The IssuersIssuer Issuer shall cause each Paying Agent other than the Collateral Trustee to execute and deliver to the Collateral Trustee an instrument in which such Paying Agent shall agree with the Collateral Trustee and if the Collateral Trustee acts as Paying Agent, it hereby so agrees, subject to the provisions of this Section 7.3, that such Paying Agent will:
(a) allocate all sums received for payment to the Holders of Secured Debt or Subordinated Securities for which it acts as Paying Agent on each Payment Date and any Redemption Date among such Persons Holders in the proportion specified in the applicable Distribution Report to the extent permitted by applicable law;
(b) hold all sums held by it for the payment of amounts due with respect to the Secured Debt or Subordinated Securities in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;
(c) if such Paying Agent is not the Collateral Trustee, immediately resign as a Paying Agent and forthwith pay to the Collateral Trustee all sums held by it in trust for the payment of the Secured Debt or Subordinated Securities if at any time it ceases to meet the standards set forth above required to be met by a Paying Agent at the time of its appointment;
(d) if such Paying Agent is not the Collateral Trustee, immediately give the Collateral Trustee notice of any default by the Issuer in the making of any payment required to be made; and
(e) if such Paying Agent is not the Collateral Trustee, during the continuance of any such default, upon the written request of the Collateral Trustee, forthwith pay to the Collateral Trustee all sums so held in trust by such Paying Agent. The IssuersIssuer Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, pay to the Collateral Trustee all sums held in trust by the IssuersIssuer Issuer or such Paying Agent, such sums to be held by the Collateral Trustee upon the same trusts as those upon which such sums were held by the IssuersIssuer Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the Collateral Trustee, such Paying Agent shall be released from all further liability with respect to such Money. Except as otherwise required by applicable law, any Money deposited with the Collateral Trustee or any Paying Agent in trust for any payment on any Secured Debt or Subordinated Securities and remaining unclaimed for two years after such amount has become due and payable shall be paid to the Issuer on Issuer Order; and the Holder of such Secured Debt or Subordinated Securities shall thereafter, as an unsecured general creditor, look only to the Issuer for payment of such amounts (but only to the extent of the amounts so paid to the Issuer) and all liability of the Collateral Trustee or such Paying Agent with respect to such trust Money shall thereupon cease. The Collateral Trustee or such Paying Agent, before being required to make any such release of payment, may, but shall not be required to, adopt and employ, at the expense of the IssuersIssuer Issuer any reasonable means of notification of such release of payment, including, but not limited to, mailing notice of such release to Holders whose Secured Debt or Subordinated Securitieshas Notes have been called but have not been surrendered for redemption or whose right to or interest in Monies due and payable but not claimed is determinable from the records of any Paying Agent, at the last address of record of each such Holder.
(a) EachExistence of the Issuer and Co-Issuer.
(a) The Issuer shall take all reasonable steps to maintain its identity as a separate legal entity from that of its shareholders or members, as applicable. Each of theThe Issuer and the Co-Issuer shall keep its registered office or principal place of business (as the case may be) in the same city, state and country indicated in the address specified in Section 14.3. Each of theThe Issuer and the Co-Issuer shall keep separate books and records and shall not commingle its respective funds with those of any other Person. The Issuer and the Co-Issuer shall keep in full force and effect theirits rights and franchises as a company incorporated under the laws of the Cayman Islands and as a limited liability company organized under the laws of the State of Delaware, respectively, shall comply with the provisions of their respectiveits Organizational Documents and shall obtain and preserve theirits qualification to do business as foreign corporations in each jurisdiction in which such qualifications are or shall be necessary to protect the validity and enforceability of this Indenture, the Secured Debt or Subordinated Securities, the Credit Agreement, or any of the Assets; provided, however, that, subject to Cayman IslandsDelaware law, the Issuer shall be entitled to change its jurisdiction of incorporationformation from the Cayman IslandsDelaware to any other jurisdiction reasonably selected by the Issuer and approved by a Majority of the Subordinated SecuritiesPreferred Shares in accordance with the Limited Liability Company Agreement, so long as (x) (i) the Issuer 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 Issuer, which notice shall be promptly forwarded by the Collateral Trustee to the Holders, the Collateral Manager and the Rating Agency, and (iii) the S&P Rating Condition is satisfied and (iv) 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)(xxix).
(b) Each of the Issuer and the Co-The Issuer shall (i) ensure that all corporate (or, in the case of the Co-Issuer, limited liability company) or other formalities regarding its existence (including, to the extent required by applicable law, holding regular board of directors’, partners’, member’s, manager andmembers’, managers’ and shareholders’ or other similar meetings) are followed, (ii) conduct business in its own name, (iii) correct any known misunderstanding as to its separate existence, (iv) maintain separate financial statements (if any), (v) maintain an arm’s-length relationship with any Affiliates, (vi) maintain adequate capital in light of its contemplated business operations and, (vii) not commingle its funds with those of any other entity. Neither the Issuer nor the Co-Issuer shall and (viii) pay its own liabilities out of its own funds. The Issuer shall not take any action, or conduct its affairs in a manner, that is likely to result in its separate existence being 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 Issuer shall not have any subsidiaries (other than the Co-Issuer and any subsidiaries necessitated by a change of jurisdiction pursuant to clause (a), subject to satisfaction of the S&P Rating Condition in the case of such clause (a)), and (ii) the Co-Issuer shall not have any subsidiaries and (iii) the Issuer and the Co-Issuer shall not (A) have any employees (other than their respectiveits directors, manager and officers) to the extent they are employees, (B) engage in any transaction with any shareholder, member or partner that would constitute a conflict of interest (provided that each Transaction Document shall not be deemed to be such a transaction that would constitute a conflict of interest) or (C) pay dividends or make distributions to its owners other than in accordance with the provisions of this Indenture. This Section 7.4(b) shall not be binding to the extent inconsistent with the status of the Issuer as an entity disregarded from its sole owner for U.S. federal income tax purposes.
(c) The Co-IssuerIssuer will at all times have at least one Independent manager under the Limited Liability Company Agreement.
Appears in 1 contract
Money for Debt Payments to be Held in Trust. All payments or distributions of amounts due and payable with respect to any Debt that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer by the Collateral Trustee or a Paying Agent (and, in the case of the Class A-LR Loans, the Loan Agent) as with respect to payments or distributions on the Debt. Money for Note Payments to be Held in Trust. All payments of amounts due and payable with respect to any Secured Debt and Subordinated Securities that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer (and, in the case of the Co-Issued Debt, the Issuers) by the Collateral Trustee or a Paying Agent with respect to payments or distributions on the Secured Debt and Subordinated Securities. When the IssuersIssuer Applicable Issuers shall have a Paying Agent that is not also the Registrar, the IssuersIssuer they shall furnish, or cause the Registrar to furnish, no later than the fifth calendar day after each Record Date a list, if necessary, in such form as such Paying Agent may reasonably request, of the names and addresses of the Holders and of the certificate numbers of individual Notes Debt held by each such Holder. Whenever the IssuersIssuer Applicable Issuers shall have a Paying Agent other than the Collateral Trustee, the IssuersIssuer they shall, on or before the Business Day next preceding each Payment Date and on any Redemption Date, as the case may be, direct the Collateral Trustee to deposit on such Payment Date or such Redemption Date, as the case may be, with such Paying Agent, if necessary, an aggregate sum sufficient to pay the amounts then becoming due (to the extent funds are then available for such purpose in the Payment Account), such sum to be held in trust for the benefit of the Persons entitled thereto and (unless such Paying Agent is the Collateral Trustee) the IssuersIssuer Applicable Issuers shall promptly notify the Collateral Trustee of its action or failure so to act. Any Monies deposited with a Paying Agent (other than the Collateral Trustee) in excess of an amount sufficient to pay the amounts then becoming due on the Secured Debt and Subordinated Securities with respect to which such deposit was made shall be paid over by such Paying Agent to the Collateral Trustee for application in accordance with Article XI. X. The initial Paying Agent shall be as set forth in Section 7.27.2 (Maintenance of Office or Agency). Any additional or successor Paying Agents shall be appointed by Issuer Order with written notice thereof to the Collateral Trustee; provided thatthat so long as the Debt of any Class is rated by S&P, with respect to any additional or successor Paying Agent, (x) so long as the NotesSecured Debt of any Class are rated by S&P either (i) such Paying Agent has a long-term debtissuer credit debt rating of ““"A+”” " or higher by S&P or a short-term debt rating of ““"A-1”” " by S&P S&P) or (ii) the S&P Rating Condition is satisfied. If such successor Paying Agent ceases to have any such minimum a long-term debt rating specified in clause (i) of the immediately preceding sentence"A+" or higher by S&P or a short-term debt rating "A-1" by S&P, the Issuer Issuers shall promptly remove such Paying Agent and appoint a successor Paying Agent. The IssuersIssuer Issuers shall not appoint any Paying Agent that is not, at the time of such appointment, a depository institution or trust company subject to supervision and examination by federal and/or state and/or national banking authorities. The IssuersIssuer Issuers shall cause each Paying Agent other than the Collateral Trustee to execute and deliver to the Collateral Trustee an instrument in which such Paying Agent shall agree with the Collateral Trustee and if the Collateral Trustee acts as Paying Agent, it hereby so agrees, subject to the provisions of this Section 7.37.3 (Money for Debt Payments to be Held in Trust), that such Paying Agent will:
: (a) allocate all sums received for payment to the Holders of Secured Debt or Subordinated Securities Notes for which it acts as Paying Agent on each Payment Date and any Redemption Date among such Persons Holders in the proportion specified in the applicable Distribution Report to the extent permitted by applicable law;
; (b) hold all sums held by it for the payment of amounts due with respect to the Secured Debt or Subordinated Securities Notes in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;
(c) if such Paying Agent is not the Collateral Trustee, immediately resign as a Paying Agent and forthwith pay to the Collateral Trustee all sums held by it in trust for the payment of the Secured Debt or Subordinated Securities if at any time it ceases to meet the standards set forth above required to be met by a Paying Agent at the time of its appointment;
(d) if such Paying Agent is not the Collateral Trustee, immediately give the Collateral Trustee notice of any default by the Issuer in the making of any payment required to be made; and
(e) if such Paying Agent is not the Collateral Trustee, during the continuance of any such default, upon the written request of the Collateral Trustee, forthwith pay to the Collateral Trustee all sums so held in trust by such Paying Agent. The IssuersIssuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Collateral Trustee all sums held in trust by the IssuersIssuer or such Paying Agent, such sums to be held by the Collateral Trustee upon the same trusts as those upon which such sums were held by the IssuersIssuer or such Paying Agent; and, upon such payment by any Paying Agent to the Collateral Trustee, such Paying Agent shall be released from all further liability with respect to such Money. Except as otherwise required by applicable law, any Money deposited with the Collateral Trustee or any Paying Agent in trust for any payment on any Secured Debt or Subordinated Securities and remaining unclaimed for two years after such amount has become due and payable shall be paid to the Issuer on Issuer Order; and the Holder of such Secured Debt or Subordinated Securities shall thereafter, as an unsecured general creditor, look only to the Issuer for payment of such amounts (but only to the extent of the amounts so paid to the Issuer) and all liability of the Collateral Trustee or such Paying Agent with respect to such trust Money shall thereupon cease. The Collateral Trustee or such Paying Agent, before being required to make any such release of payment, may, but shall not be required to, adopt and employ, at the expense of the IssuersIssuer any reasonable means of notification of such release of payment, including, but not limited to, mailing notice of such release to Holders whose Secured Debt or Subordinated Securitieshas been called but have not been surrendered for redemption or whose right to or interest in Monies due and payable but not claimed is determinable from the records of any Paying Agent, at the last address of record of each such Holder.
(a) EachExistence of the Issuer and Co-Issuer.
(a) The Issuer shall take all reasonable steps to maintain its identity as a separate legal entity from that of its shareholders or members, as applicable. Each of theThe Issuer and the Co-Issuer shall keep its registered office or principal place of business (as the case may be) in the same city, state and country indicated in the address specified in Section 14.3. Each of theThe Issuer and the Co-Issuer shall keep separate books and records and shall not commingle its respective funds with those of any other Person. The Issuer and the Co-Issuer shall keep in full force and effect theirits rights and franchises as a company incorporated under the laws of the Cayman Islands and as a limited liability company organized under the laws of the State of Delaware, respectively, shall comply with the provisions of their respectiveits Organizational Documents and shall obtain and preserve theirits qualification to do business as foreign corporations in each jurisdiction in which such qualifications are or shall be necessary to protect the validity and enforceability of this Indenture, the Secured Debt or Subordinated Securities, the Credit Agreement, or any of the Assets; provided, however, that, subject to Cayman IslandsDelaware law, the Issuer shall be entitled to change its jurisdiction of incorporationformation from the Cayman IslandsDelaware to any other jurisdiction reasonably selected by the Issuer and approved by a Majority of the Subordinated SecuritiesPreferred Shares in accordance with the Limited Liability Company Agreement, so long as (x) (i) the Issuer 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 Issuer, which notice shall be promptly forwarded by the Collateral Trustee to the Holders, the Collateral Manager and the Rating Agency, and (iii) the S&P Rating Condition is satisfied and (iv) 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)(xxix).
(b) Each of the Issuer and the Co-The Issuer shall (i) ensure that all corporate (or, in the case of the Co-Issuer, limited liability company) or other formalities regarding its existence (including, to the extent required by applicable law, holding regular board of directors’, partners’, member’s, manager andmembers’, managers’ and shareholders’ or other similar meetings) are followed, (ii) conduct business in its own name, (iii) correct any known misunderstanding as to its separate existence, (iv) maintain separate financial statements (if any), (v) maintain an arm’s-length relationship with any Affiliates, (vi) maintain adequate capital in light of its contemplated business operations and, (vii) not commingle its funds with those of any other entity. Neither the Issuer nor the Co-Issuer shall and (viii) pay its own liabilities out of its own funds. The Issuer shall not take any action, or conduct its affairs in a manner, that is likely to result in its separate existence being 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 Issuer shall not have any subsidiaries (other than the Co-Issuer and any subsidiaries necessitated by a change of jurisdiction pursuant to clause (a), subject to satisfaction of the S&P Rating Condition in the case of such clause (a)), and (ii) the Co-Issuer shall not have any subsidiaries and (iii) the Issuer and the Co-Issuer shall not (A) have any employees (other than their respectiveits directors, manager and officers) to the extent they are employees, (B) engage in any transaction with any shareholder, member or partner that would constitute a conflict of interest (provided that each Transaction Document shall not be deemed to be such a transaction that would constitute a conflict of interest) or (C) pay dividends or make distributions to its owners other than in accordance with the provisions of this Indenture. This Section 7.4(b) shall not be binding to the extent inconsistent with the status of the Issuer as an entity disregarded from its sole owner for U.S. federal income tax purposes.
(c) The Co-IssuerIssuer will at all times have at least one Independent manager under the Limited Liability Company Agreement.such
Appears in 1 contract
Money for Debt Payments to be Held in Trust. All payments or distributions of amounts due and payable with respect to any Debt that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer by the Collateral Trustee or a Paying Agent (and, in the case of the Class A-LR Loans, the Loan Agent) as with respect to payments or distributions on the Debt. Money for Note Payments to be Held in Trust. All payments of amounts due and payable with respect to any Secured Debt and Subordinated Securities that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer (and, in the case of the Co-Issued Debt, the Issuers) by the Collateral Trustee or a Paying Agent with respect to payments or distributions on the Secured Debt and Subordinated Securities. When the IssuersIssuer Applicable Issuers shall have a Paying Agent that is not also the Registrar, the IssuersIssuer they shall furnish, or cause the Registrar to furnish, no later than the fifth calendar day after each Record Date a list, if necessary, in such form as such Paying Agent may reasonably request, of the names and addresses of the Holders and of the certificate numbers of individual Notes Debt held by each such Holder. Whenever the IssuersIssuer Applicable Issuers shall have a Paying Agent other than the Collateral Trustee, the IssuersIssuer they shall, on or before the Business Day next preceding each Payment Date and on any Redemption Date, as the case may be, direct the Collateral Trustee to deposit on such Payment Date or such Redemption Date, as the case may be, with such Paying Agent, if necessary, an aggregate sum sufficient to pay the amounts then becoming due (to the extent funds are then available for such purpose in the Payment Account), such sum to be held in trust for the benefit of the Persons entitled thereto and (unless such Paying Agent is the Collateral Trustee) the IssuersIssuer Applicable Issuers shall promptly notify the Collateral Trustee of its action or failure so to act. Any Monies deposited with a Paying Agent (other than the Collateral Trustee) in excess of an amount sufficient to pay the amounts then becoming due on the Secured Debt and Subordinated Securities with respect to which such deposit was made shall be paid over by such Paying Agent to the Collateral Trustee for application in accordance with Article XI. X. The initial Paying Agent shall be as set forth in Section 7.27.2 (Maintenance of Office or Agency). Any additional or successor Paying Agents shall be appointed by Issuer Order with written notice thereof to the Collateral Trustee; provided thatthat so long as the Debt of any Class is rated by S&P, with respect to any additional or successor Paying Agent, (x) so long as the NotesSecured Debt of any Class are rated by S&P either (i) such Paying Agent has a long-term debtissuer credit debt rating of ““"A+”” " or higher by S&P or a short-term debt rating of ““"A-1”” " by S&P S&P) or (ii) the S&P Rating Condition is satisfied. If such successor Paying Agent ceases to have any such minimum a long-term debt rating specified in clause (i) of the immediately preceding sentence"A+" or higher by S&P or a short-term debt rating "A-1" by S&P, the Issuer Issuers shall promptly remove such Paying Agent and appoint a successor Paying Agent. The IssuersIssuer Issuers shall not appoint any Paying Agent that is not, at the time of such appointment, a depository institution or trust company subject to supervision and examination by federal and/or state and/or national banking authorities. The IssuersIssuer shall cause each Paying Agent other than the Collateral Trustee to execute and deliver to the Collateral Trustee an instrument in which such Paying Agent shall agree with the Collateral Trustee and if the Collateral Trustee acts as Paying Agent, it hereby so agrees, subject to the provisions of this Section 7.3, that such Paying Agent will:
(a) allocate all sums received for payment to the Holders of Secured Debt or Subordinated Securities for which it acts as Paying Agent on each Payment Date and any Redemption Date among such Persons in the proportion specified in the applicable Distribution Report to the extent permitted by applicable law;
(b) hold all sums held by it for the payment of amounts due with respect to the Secured Debt or Subordinated Securities in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;
(c) if such Paying Agent is not the Collateral Trustee, immediately resign as a Paying Agent and forthwith pay to the Collateral Trustee all sums held by it in trust for the payment of the Secured Debt or Subordinated Securities if at any time it ceases to meet the standards set forth above required to be met by a Paying Agent at the time of its appointment;
(d) if such Paying Agent is not the Collateral Trustee, immediately give the Collateral Trustee notice of any default by the Issuer in the making of any payment required to be made; and
(e) if such Paying Agent is not the Collateral Trustee, during the continuance of any such default, upon the written request of the Collateral Trustee, forthwith pay to the Collateral Trustee all sums so held in trust by such Paying Agent. The IssuersIssuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Collateral Trustee all sums held in trust by the IssuersIssuer or such Paying Agent, such sums to be held by the Collateral Trustee upon the same trusts as those upon which such sums were held by the IssuersIssuer or such Paying Agent; and, upon such payment by any Paying Agent to the Collateral Trustee, such Paying Agent shall be released from all further liability with respect to such Money. Except as otherwise required by applicable law, any Money deposited with the Collateral Trustee or any Paying Agent in trust for any payment on any Secured Debt or Subordinated Securities and remaining unclaimed for two years after such amount has become due and payable shall be paid to the Issuer on Issuer Order; and the Holder of such Secured Debt or Subordinated Securities shall thereafter, as an unsecured general creditor, look only to the Issuer for payment of such amounts (but only to the extent of the amounts so paid to the Issuer) and all liability of the Collateral Trustee or such Paying Agent with respect to such trust Money shall thereupon cease. The Collateral Trustee or such Paying Agent, before being required to make any such release of payment, may, but shall not be required to, adopt and employ, at the expense of the IssuersIssuer any reasonable means of notification of such release of payment, including, but not limited to, mailing notice of such release to Holders whose Secured Debt or Subordinated Securitieshas been called but have not been surrendered for redemption or whose right to or interest in Monies due and payable but not claimed is determinable from the records of any Paying Agent, at the last address of record of each such Holder.
(a) EachExistence of the Issuer and Co-Issuer.
(a) The Issuer shall take all reasonable steps to maintain its identity as a separate legal entity from that of its shareholders or members, as applicable. Each of theThe Issuer and the Co-Issuer shall keep its registered office or principal place of business (as the case may be) in the same city, state and country indicated in the address specified in Section 14.3. Each of theThe Issuer and the Co-Issuer shall keep separate books and records and shall not commingle its respective funds with those of any other Person. The Issuer and the Co-Issuer shall keep in full force and effect theirits rights and franchises as a company incorporated under the laws of the Cayman Islands and as a limited liability company organized under the laws of the State of Delaware, respectively, shall comply with the provisions of their respectiveits Organizational Documents and shall obtain and preserve theirits qualification to do business as foreign corporations in each jurisdiction in which such qualifications are or shall be necessary to protect the validity and enforceability of this Indenture, the Secured Debt or Subordinated Securities, the Credit Agreement, or any of the Assets; provided, however, that, subject to Cayman IslandsDelaware law, the Issuer shall be entitled to change its jurisdiction of incorporationformation from the Cayman IslandsDelaware to any other jurisdiction reasonably selected by the Issuer and approved by a Majority of the Subordinated SecuritiesPreferred Shares in accordance with the Limited Liability Company Agreement, so long as (x) (i) the Issuer 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 Issuer, which notice shall be promptly forwarded by the Collateral Trustee to the Holders, the Collateral Manager and the Rating Agency, and (iii) the S&P Rating Condition is satisfied and (iv) 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)(xxix).
(b) Each of the Issuer and the Co-The Issuer shall (i) ensure that all corporate (or, in the case of the Co-Issuer, limited liability company) or other formalities regarding its existence (including, to the extent required by applicable law, holding regular board of directors’, partners’, member’s, manager andmembers’, managers’ and shareholders’ or other similar meetings) are followed, (ii) conduct business in its own name, (iii) correct any known misunderstanding as to its separate existence, (iv) maintain separate financial statements (if any), (v) maintain an arm’s-length relationship with any Affiliates, (vi) maintain adequate capital in light of its contemplated business operations and, (vii) not commingle its funds with those of any other entity. Neither the Issuer nor the Co-Issuer shall and (viii) pay its own liabilities out of its own funds. The Issuer shall not take any action, or conduct its affairs in a manner, that is likely to result in its separate existence being 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 Issuer shall not have any subsidiaries (other than the Co-Issuer and any subsidiaries necessitated by a change of jurisdiction pursuant to clause (a), subject to satisfaction of the S&P Rating Condition in the case of such clause (a)), and (ii) the Co-Issuer shall not have any subsidiaries and (iii) the Issuer and the Co-Issuer shall not (A) have any employees (other than their respectiveits directors, manager and officers) to the extent they are employees, (B) engage in any transaction with any shareholder, member or partner that would constitute a conflict of interest (provided that each Transaction Document shall not be deemed to be such a transaction that would constitute a conflict of interest) or (C) pay dividends or make distributions to its owners other than in accordance with the provisions of this Indenture. This Section 7.4(b) shall not be binding to the extent inconsistent with the status of the Issuer as an entity disregarded from its sole owner for U.S. federal income tax purposes.
(c) The Co-IssuerIssuer will at all times have at least one Independent manager under the Limited Liability Company Agreement.162
Appears in 1 contract
Money for Debt Payments to be Held in Trust. All payments or distributions of amounts due and payable with respect to any Debt Securities that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer by the Collateral Trustee or a Paying Agent (and, in the case of the Class A-LR A-1L Loans, the Loan Agent) as with respect to payments or distributions on the Debt. Money for Note Payments to be Held in Trust. All payments of amounts due and payable with respect to any Secured Debt and Subordinated Securities that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer (and, in the case of the Co-Issued Debt, the Issuers) by the Collateral Trustee or a Paying Agent with respect to payments or distributions on the Secured Debt and Subordinated Securities. When the IssuersIssuer Issuer shall have a Paying Agent that is not also the Registrar, the IssuersIssuer Issuer shall furnish, or cause the Registrar to furnish, no later than the fifth calendar day after each Record Date a list, if necessary, in such form as such Paying Agent may reasonably request, of the names and addresses of the Holders and of the certificate numbers of individual Notes held by each such Holder. Whenever the IssuersIssuer Issuer shall have a Paying Agent other than the Collateral Trustee, the IssuersIssuer Issuer shall, on or before the Business Day next preceding each Payment Date and on any Redemption Date, as the case may be, direct the Collateral Trustee to deposit on such Payment Date or such Redemption Date, as the case may be, with such Paying Agent, if necessary, an aggregate sum sufficient to pay the amounts then becoming due (to the extent funds are then available for such purpose in the Payment Account), such sum to be held in trust for the benefit of the Persons entitled thereto and (unless such Paying Agent is the Collateral Trustee) the IssuersIssuer Issuer shall promptly notify the Collateral Trustee of its action or failure so to act. Any Monies deposited with a Paying Agent (other than the Collateral Trustee) in excess of an amount sufficient to pay the amounts then becoming due on the Secured Debt and Subordinated Securities with respect to which such deposit was made shall be paid over by such Paying Agent to the Collateral Trustee for application in accordance with Article XI. The initial Paying Agent shall be as set forth in Section 7.2. Any additional or successor Paying Agents shall be appointed by Issuer Order with written notice thereof to the Collateral Trustee; provided that, with respect to any additional or successor Paying Agent, (x) so long as the NotesSecured Debt of any Class are rated by S&P either (i) such Paying Agent has a long-term debtissuer issuer credit rating of ““A+”” or higher by S&P or a short-term debt rating of ““A-1”” by S&P or (ii) the S&P Rating Condition is satisfied. If such successor Paying Agent ceases to have any such minimum rating specified in clause (i) of the immediately preceding sentence, the Issuer shall promptly remove such Paying Agent and appoint a successor Paying Agent. The IssuersIssuer Issuer shall not appoint any Paying Agent that is not, at the time of such appointment, a depository institution or trust company subject to supervision and examination by federal and/or state and/or national banking authorities. The IssuersIssuer Issuer shall cause each Paying Agent other than the Collateral Trustee to execute and deliver to the Collateral Trustee an instrument in which such Paying Agent shall agree with the Collateral Trustee and if the Collateral Trustee acts as Paying Agent, it hereby so agrees, subject to the provisions of this Section 7.3, that such Paying Agent will:
(a) allocate all sums received for payment to the Holders of Secured Debt or Subordinated Securities for which it acts as Paying Agent on each Payment Date and any Redemption Date among such Persons in the proportion specified in the applicable Distribution Report to the extent permitted by applicable law;
(b) hold all sums held by it for the payment of amounts due with respect to the Secured Debt or Subordinated Securities in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;
(c) if such Paying Agent is not the Collateral Trustee, immediately resign as a Paying Agent and forthwith pay to the Collateral Trustee all sums held by it in trust for the payment of the Secured Debt or Subordinated Securities if at any time it ceases to meet the standards set forth above required to be met by a Paying Agent at the time of its appointment;
(d) if such Paying Agent is not the Collateral Trustee, immediately give the Collateral Trustee notice of any default by the Issuer in the making of any payment required to be made; and
(e) if such Paying Agent is not the Collateral Trustee, during the continuance of any such default, upon the written request of the Collateral Trustee, forthwith pay to the Collateral Trustee all sums so held in trust by such Paying Agent. The IssuersIssuer Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Collateral Trustee all sums held in trust by the IssuersIssuer Issuer or such Paying Agent, such sums to be held by the Collateral Trustee upon the same trusts as those upon which such sums were held by the IssuersIssuer Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the Collateral Trustee, such Paying Agent shall be released from all further liability with respect to such Money. Except as otherwise required by applicable law, any Money deposited with the Collateral Trustee or any Paying Agent in trust for any payment on any Secured Debt or Subordinated Securities and remaining unclaimed for two years after such amount has become due and payable shall be paid to the Issuer on Issuer Order; and the Holder of such Secured Debt or Subordinated Securities shall thereafter, as an unsecured general creditor, look only to the Issuer for payment of such amounts (but only to the extent of the amounts so paid to the Issuer) and all liability of the Collateral Trustee or such Paying Agent with respect to such trust Money shall thereupon cease. The Collateral Trustee or such Paying Agent, before being required to make any such release of payment, may, but shall not be required to, adopt and employ, at the expense of the IssuersIssuer Issuer any reasonable means of notification of such release of payment, including, but not limited to, mailing notice of such release to Holders whose Secured Debt or Subordinated Securitieshas Securities have been called but have not been surrendered for redemption or whose right to or interest in Monies due and payable but not claimed is determinable from the records of any Paying Agent, at the last address of record of each such Holder.
(a) EachExistence of the Issuer and Co-Issuer.
(a) The Issuer shall take all reasonable steps to maintain its identity as a separate legal entity from that of its shareholders or members, as applicable. Each of theThe Issuer and the Co-Issuer shall keep its registered office or principal place of business (as the case may be) in the same city, state and country indicated in the address specified in Section 14.3. Each of theThe Issuer and the Co-Issuer shall keep separate books and records and shall not commingle its respective funds with those of any other Person. The Issuer and the Co-Issuer shall keep in full force and effect theirits rights and franchises as a company incorporated under the laws of the Cayman Islands and as a limited liability company organized under the laws of the State of Delaware, respectively, shall comply with the provisions of their respectiveits Organizational Documents and shall obtain and preserve theirits qualification to do business as foreign corporations in each jurisdiction in which such qualifications are or shall be necessary to protect the validity and enforceability of this Indenture, the Secured Debt or Subordinated Securities, the Credit Agreement, or any of the Assets; provided, however, that, subject to Cayman IslandsDelaware law, the Issuer shall be entitled to change its jurisdiction of incorporationformation from the Cayman IslandsDelaware to any other jurisdiction reasonably selected by the Issuer and approved by a Majority of the Subordinated SecuritiesPreferred Shares in accordance with the Limited Liability Company Agreement, so long as (x) (i) the Issuer 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 Issuer, which notice shall be promptly forwarded by the Collateral Trustee to the Holders, the Collateral Manager and the Rating Agency, and (iii) the S&P Rating Condition is satisfied and (iv) 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)(xxix).
(b) Each of the Issuer and the Co-The Issuer shall (i) ensure that all corporate (or, in the case of the Co-Issuer, limited liability company) or other formalities regarding its existence (including, to the extent required by applicable law, holding regular board of directors’, partners’, member’s, manager andmembers’, managers’ and shareholders’ or other similar meetings) are followed, (ii) conduct business in its own name, (iii) correct any known misunderstanding as to its separate existence, (iv) maintain separate financial statements (if any), (v) maintain an arm’s-length relationship with any Affiliates, (vi) maintain adequate capital in light of its contemplated business operations and, (vii) not commingle its funds with those of any other entity. Neither the Issuer nor the Co-Issuer shall and (viii) pay its own liabilities out of its own funds. The Issuer shall not take any action, or conduct its affairs in a manner, that is likely to result in its separate existence being 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 Issuer shall not have any subsidiaries (other than the Co-Issuer and any subsidiaries necessitated by a change of jurisdiction pursuant to clause (a), subject to satisfaction of the S&P Rating Condition in the case of such clause (a)), and (ii) the Co-Issuer shall not have any subsidiaries and (iii) the Issuer and the Co-Issuer shall not (A) have any employees (other than their respectiveits directors, manager and officers) to the extent they are employees, (B) engage in any transaction with any shareholder, member or partner that would constitute a conflict of interest (provided that each Transaction Document shall not be deemed to be such a transaction that would constitute a conflict of interest) or (C) pay dividends or make distributions to its owners other than in accordance with the provisions of this Indenture. This Section 7.4(b) shall not be binding to the extent inconsistent with the status of the Issuer as an entity disregarded from its sole owner for U.S. federal income tax purposes.
(c) The Co-IssuerIssuer will at all times have at least one Independent manager under the Limited Liability Company Agreement.
Appears in 1 contract
Samples: Indenture and Security Agreement (Blue Owl Credit Income Corp.)
Money for Debt Payments to be Held in Trust. All payments or distributions of amounts due and payable with respect to any Debt that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer by the Collateral Trustee or a Paying Agent (and, in the case of the Class A-LR Loans, the Loan Agent) as with respect to payments or distributions on the Debt. Money for Note Payments to be Held in Trust. All payments of amounts due and payable with respect to any Secured Debt and Subordinated Securities that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer (and, in the case of the Co-Issued Debt, the Issuers) by the Collateral Trustee or a Paying Agent with respect to payments or distributions on the Secured Debt and Subordinated Securities. When the IssuersIssuer Applicable Issuers shall have a Paying Agent that is not also the Registrar, the IssuersIssuer they shall furnish, or cause the Registrar to furnish, no later than the fifth calendar day after each Record Date a list, if necessary, in such form as such Paying Agent may reasonably request, of the names and addresses of the Holders and of the certificate numbers of individual Notes Debt held by each such Holder. Whenever the IssuersIssuer Applicable Issuers shall have a Paying Agent other than the Collateral Trustee, the IssuersIssuer they shall, on or before the Business Day next preceding each Payment Date and on any Redemption Date, as the case may be, direct the Collateral Trustee to deposit on such Payment Date or such Redemption Date, as the case may be, with such Paying Agent, if necessary, an aggregate sum sufficient to pay the amounts then becoming due (to the extent funds are then available for such purpose in the Payment Account), such sum to be held in trust for the benefit of the Persons entitled thereto and (unless such Paying Agent is the Collateral Trustee) the IssuersIssuer Applicable Issuers shall promptly notify the Collateral Trustee of its action or failure so to act. Any Monies deposited with a Paying Agent (other than the Collateral Trustee) in excess of an amount sufficient to pay the amounts then becoming due on the Secured Debt and Subordinated Securities with respect to which such deposit was made shall be paid over by such Paying Agent to the Collateral Trustee for application in accordance with Article XI. X. The initial Paying Agent shall be as set forth in Section 7.27.2 (Maintenance of Office or Agency). Any additional or successor Paying Agents shall be appointed by Issuer Order with written notice thereof to the Collateral Trustee; provided thatthat so long as the Debt of any Class is rated by S&P, with respect to any additional or successor Paying Agent, (x) so long as the NotesSecured Debt of any Class are rated by S&P either (i) such Paying Agent has a long-term debtissuer credit long‑term debt rating of ““A+”” or higher by S&P or a short-term short‑term debt rating of ““A-1”A‑1” by S&P S&P) or (ii) the S&P Rating Condition is satisfied. If such successor Paying Agent ceases to have any such minimum a long‑term debt rating specified in clause (i) of the immediately preceding sentence“A+” or higher by S&P or a short‑term debt rating “A‑1” by S&P, the Issuer Issuers shall promptly remove such Paying Agent and appoint a successor Paying Agent. The IssuersIssuer Issuers shall not appoint any Paying Agent that is not, at the time of such appointment, a depository institution or trust company subject to supervision and examination by federal and/or state and/or national banking authorities. The IssuersIssuer Issuers shall cause each Paying Agent other than the Collateral Trustee to execute and deliver to the Collateral Trustee an instrument in which such Paying Agent shall agree with the Collateral Trustee and if the Collateral Trustee acts as Paying Agent, it hereby so agrees, subject to the provisions of this Section 7.37.3 (Money for Debt Payments to be Held in Trust), that such Paying Agent will:
(a) allocate all sums received for payment to the Holders of Secured Debt or Subordinated Securities Notes for which it acts as Paying Agent on each Payment Date and any Redemption Date among such Persons Holders in the proportion specified in the applicable Distribution Report to the extent permitted by applicable law;
(b) hold all sums held by it for the payment of amounts due with respect to the Secured Debt or Subordinated Securities Notes in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;
(c) if such Paying Agent is not the Collateral Trustee, immediately resign as a Paying Agent and forthwith pay to the Collateral Trustee all sums held by it in trust for the payment of the Secured Debt or Subordinated Securities Notes if at any time it ceases to meet the standards set forth above required to be met by a Paying Agent at the time of its appointment;
(d) if such Paying Agent is not the Collateral Trustee, immediately give the Collateral Trustee notice of any default by the Issuer or the Co‑Issuer (or any other obligor on the Notes) in the making of any payment required to be made; and
(e) if such Paying Agent is not the Collateral Trustee, during the continuance of any such default, upon the written request of the Collateral Trustee, forthwith pay to the Collateral Trustee all sums so held in trust by such Paying Agent. The IssuersIssuer Issuers may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Collateral Trustee all sums held in trust by the IssuersIssuer Issuers or such Paying Agent, such sums to be held by the Collateral Trustee upon the same trusts as those upon which such sums were held by the IssuersIssuer Issuers or such Paying Agent; and, upon such payment by any Paying Agent to the Collateral Trustee, such Paying Agent shall be released from all further liability with respect to such Money. Except as otherwise required by applicable law, any Money deposited with the Collateral Trustee Trustee, the Loan Agent or any Paying Agent in trust for any payment on any Secured Debt or Subordinated Securities and remaining unclaimed for two years after such amount has become due and payable shall be paid to the Issuer Applicable Issuers on Issuer Order; and the Holder of such Secured Debt or Subordinated Securities shall thereafter, as an unsecured general creditor, look only to the Issuer Applicable Issuers for payment of such amounts (but only to the extent of the amounts so paid to the IssuerApplicable Issuers) and all liability of the Collateral Trustee Trustee, the Loan Agent or such Paying Agent with respect to such trust Money shall thereupon cease. The Collateral Trustee Trustee, the Loan Agent or such Paying Agent, before being required to make any such release of payment, may, but shall not be required to, adopt and employ, at the expense of the IssuersIssuer Applicable Issuers any reasonable means of notification of such release of payment, including, but not limited to, mailing notice of such release to Holders whose Secured Debt or Subordinated Securitieshas has been called but have not been surrendered for redemption or whose right to or interest in Monies due and payable but not claimed is determinable from the records of any Paying Agent, at the last address of record of each such Holder.
(a) EachExistence of the Issuer and Co-Issuer.
(a) The Issuer shall take all reasonable steps to maintain its identity as a separate legal entity from that of its shareholders or members, as applicable. Each of theThe Issuer and the Co-Issuer shall keep its registered office or principal place of business (as the case may be) in the same city, state and country indicated in the address specified in Section 14.3. Each of theThe Issuer and the Co-Issuer shall keep separate books and records and shall not commingle its respective funds with those of any other Person. The Issuer and the Co-Issuer shall keep in full force and effect theirits rights and franchises as a company incorporated under the laws of the Cayman Islands and as a limited liability company organized under the laws of the State of Delaware, respectively, shall comply with the provisions of their respectiveits Organizational Documents and shall obtain and preserve theirits qualification to do business as foreign corporations in each jurisdiction in which such qualifications are or shall be necessary to protect the validity and enforceability of this Indenture, the Secured Debt or Subordinated Securities, the Credit Agreement, or any of the Assets; provided, however, that, subject to Cayman IslandsDelaware law, the Issuer shall be entitled to change its jurisdiction of incorporationformation from the Cayman IslandsDelaware to any other jurisdiction reasonably selected by the Issuer and approved by a Majority of the Subordinated SecuritiesPreferred Shares in accordance with the Limited Liability Company Agreement, so long as (x) (i) the Issuer 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 Issuer, which notice shall be promptly forwarded by the Collateral Trustee to the Holders, the Collateral Manager and the Rating Agency, and (iii) the S&P Rating Condition is satisfied and (iv) 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)(xxix).
(b) Each of the Issuer and the Co-The Issuer shall (i) ensure that all corporate (or, in the case of the Co-Issuer, limited liability company) or other formalities regarding its existence (including, to the extent required by applicable law, holding regular board of directors’, partners’, member’s, manager andmembers’, managers’ and shareholders’ or other similar meetings) are followed, (ii) conduct business in its own name, (iii) correct any known misunderstanding as to its separate existence, (iv) maintain separate financial statements (if any), (v) maintain an arm’s-length relationship with any Affiliates, (vi) maintain adequate capital in light of its contemplated business operations and, (vii) not commingle its funds with those of any other entity. Neither the Issuer nor the Co-Issuer shall and (viii) pay its own liabilities out of its own funds. The Issuer shall not take any action, or conduct its affairs in a manner, that is likely to result in its separate existence being 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 Issuer shall not have any subsidiaries (other than the Co-Issuer and any subsidiaries necessitated by a change of jurisdiction pursuant to clause (a), subject to satisfaction of the S&P Rating Condition in the case of such clause (a)), and (ii) the Co-Issuer shall not have any subsidiaries and (iii) the Issuer and the Co-Issuer shall not (A) have any employees (other than their respectiveits directors, manager and officers) to the extent they are employees, (B) engage in any transaction with any shareholder, member or partner that would constitute a conflict of interest (provided that each Transaction Document shall not be deemed to be such a transaction that would constitute a conflict of interest) or (C) pay dividends or make distributions to its owners other than in accordance with the provisions of this Indenture. This Section 7.4(b) shall not be binding to the extent inconsistent with the status of the Issuer as an entity disregarded from its sole owner for U.S. federal income tax purposes.
(c) The Co-IssuerIssuer will at all times have at least one Independent manager under the Limited Liability Company Agreement.
Appears in 1 contract
Money for Debt Payments to be Held in Trust. All payments or distributions of amounts due and payable with respect to any Debt Securities that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer by the Collateral Trustee or a Paying Agent (and, in the case of the Class A-LR A-1L Loans, the Loan Agent) as with respect to payments or distributions on the Debt. Money for Note Payments to be Held in Trust. All payments of amounts due and payable with respect to any Secured Debt and Subordinated Securities that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer (and, in the case of the Co-Issued Debt, the Issuers) by the Collateral Trustee or a Paying Agent with respect to payments or distributions on the Secured Debt and Subordinated Securities. When the IssuersIssuer Issuer shall have a Paying Agent that is not also the Registrar, the IssuersIssuer Issuer shall furnish, or cause the Registrar to furnish, no later than the fifth calendar day after each Record Date a list, if necessary, in such form as such Paying Agent may reasonably request, of the names and addresses of the Holders and of the certificate numbers of individual Notes held by each such Holder. Whenever the IssuersIssuer Issuer shall have a Paying Agent other than the Collateral Trustee, the IssuersIssuer Issuer shall, on or before the Business Day next preceding each Payment Date and on any Redemption Date, as the case may be, direct the Collateral Trustee to deposit on such Payment Date or such Redemption Date, as the case may be, with such Paying Agent, if necessary, an aggregate sum sufficient to pay the amounts then becoming due (to the extent funds are then available for such purpose in the Payment Account), such sum to be held in trust for the benefit of the Persons entitled thereto and (unless such Paying Agent is the Collateral Trustee) the IssuersIssuer Issuer shall promptly notify the Collateral Trustee of its action or failure so to act. Any Monies deposited with a Paying Agent (other than the Collateral Trustee) in excess of an amount sufficient to pay the amounts then becoming due on the Secured Debt and Subordinated Securities with respect to which such deposit was made shall be paid over by such Paying Agent to the Collateral Trustee for application in accordance with Article XI. The initial Paying Agent shall be as set forth in Section 7.2. Any additional or successor Paying Agents shall be appointed by Issuer Order with written notice thereof to the Collateral Trustee; provided that, with respect to any additional or successor Paying Agent, (x) so long as the NotesSecured Debt of any Class are rated by S&P either (i) such Paying Agent has a long-term debtissuer issuer credit rating of ““A+”” or higher by S&P or a short-term debt rating of ““A-1”” by S&P or (ii) the S&P Rating Condition is satisfied. If such successor Paying Agent ceases to have any such minimum rating specified in clause (i) of the immediately preceding sentence, the Issuer shall promptly remove such Paying Agent and appoint a successor Paying Agent. The IssuersIssuer Issuer shall not appoint any Paying Agent that is not, at the time of such appointment, a depository institution or trust company subject to supervision and examination by federal and/or state and/or national banking authorities. The IssuersIssuer Issuer shall cause each Paying Agent other than the Collateral Trustee to execute and deliver to the Collateral Trustee an instrument in which such Paying Agent shall agree with the Collateral Trustee and if the Collateral Trustee acts as Paying Agent, it hereby so agrees, subject to the provisions of this Section 7.3, that such Paying Agent will:
(a) allocate all sums received for payment to the Holders of Secured Debt or Subordinated Securities for which it acts as Paying Agent on each Payment Date and any Redemption Date among such Persons in the proportion specified in the applicable Distribution Report to the extent permitted by applicable law;
(b) hold all sums held by it for the payment of amounts due with respect to the Secured Debt or Subordinated Securities in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;
(c) if such Paying Agent is not the Collateral Trustee, immediately resign as a Paying Agent and forthwith pay to the Collateral Trustee all sums held by it in trust for the payment of the Secured Debt or Subordinated Securities if at any time it ceases to meet the standards set forth above required to be met by a Paying Agent at the time of its appointment;
(d) if such Paying Agent is not the Collateral Trustee, immediately give the Collateral Trustee notice of any default by the Issuer in the making of any payment required to be made; and
(e) if such Paying Agent is not the Collateral Trustee, during the continuance of any such default, upon the written request of the Collateral Trustee, forthwith pay to the Collateral Trustee all sums so held in trust by such Paying Agent. The IssuersIssuer Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Collateral Trustee all sums held in trust by the IssuersIssuer Issuer or such Paying Agent, such sums to be held by the Collateral Trustee upon the same trusts as those upon which such sums were held by the IssuersIssuer Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the Collateral Trustee, such Paying Agent shall be released from all further liability with respect to such Money. Except as otherwise required by applicable law, any Money deposited with the Collateral Trustee or any Paying Agent in trust for any payment on any Secured Debt or Subordinated Securities and remaining unclaimed for two years after such amount has become due and payable shall be paid to the Issuer on Issuer Order; and the Holder of such Secured Debt or Subordinated Securities shall thereafter, as an unsecured general creditor, look only to the Issuer for payment of such amounts (but only to the extent of the amounts so paid to the Issuer) and all liability of the Collateral Trustee or such Paying Agent with respect to such trust Money shall thereupon cease. The Collateral Trustee or such Paying Agent, before being required to make any such release of payment, may, but shall not be required to, adopt and employ, at the expense of the IssuersIssuer Issuer any reasonable means of notification of such release of payment, including, but not limited to, mailing notice of such release to Holders whose Secured Debt or Subordinated Securitieshas Securities have been called but have not been surrendered for redemption or whose right to or interest in Monies due and payable but not claimed is determinable from the records of any Paying Agent, at the last address of record of each such Holder.
(a) EachExistence of the Issuer and Co-Issuer.
(a) The Issuer shall take all reasonable steps to maintain its identity as a separate legal entity from that of its shareholders or members, as applicable. Each of theThe Issuer and the Co-Issuer shall keep its registered office or principal place of business (as the case may be) in the same city, state and country indicated in the address specified in Section 14.3. Each of theThe Issuer and the Co-Issuer shall keep separate books and records and shall not commingle its respective funds with those of any other Person. The Issuer and the Co-Issuer shall keep in full force and effect theirits rights and franchises as a company incorporated under the laws of the Cayman Islands and as a limited liability company organized under the laws of the State of Delaware, respectively, shall comply with the provisions of their respectiveits Organizational Documents and shall obtain and preserve theirits qualification to do business as foreign corporations in each jurisdiction in which such qualifications are or shall be necessary to protect the validity and enforceability of this Indenture, the Secured Debt or Subordinated Securities, the Credit Agreement, or any of the Assets; provided, however, that, subject to Cayman IslandsDelaware law, the Issuer shall be entitled to change its jurisdiction of incorporationformation from the Cayman IslandsDelaware to any other jurisdiction reasonably selected by the Issuer and approved by a Majority of the Subordinated SecuritiesPreferred Shares in accordance with the Limited Liability Company Agreement, so long as (x) (i) the Issuer 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 Issuer, which notice shall be promptly forwarded by the Collateral Trustee to the Holders, the Collateral Manager and the Rating Agency, and (iii) the S&P Rating Condition is satisfied and (iv) 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)(xxix).
(b) Each of the Issuer and the Co-The Issuer shall (i) ensure that all corporate (or, in the case of the Co-Issuer, limited liability company) or other formalities regarding its existence (including, to the extent required by applicable law, holding regular board of directors’, partners’, member’s, manager andmembers’, managers’ and shareholders’ or other similar meetings) are followed, (ii) conduct business in its own name, (iii) correct any known misunderstanding as to its separate existence, (iv) maintain separate financial statements (if any), (v) maintain an arm’s-length relationship with any Affiliates, (vi) maintain adequate capital in light of its contemplated business operations and, (vii) not commingle its funds with those of any other entity. Neither the Issuer nor the Co-Issuer shall and (viii) pay its own liabilities out of its own funds. The Issuer shall not take any action, or conduct its affairs in a manner, that is likely to result in its separate existence being 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 Issuer shall not have any subsidiaries (other than the Co-Issuer and any subsidiaries necessitated by a change of jurisdiction pursuant to clause (a), subject to satisfaction of the S&P Rating Condition in the case of such clause (a)), and (ii) the Co-Issuer shall not have any subsidiaries and (iii) the Issuer and the Co-Issuer shall not (A) have any employees (other than their respectiveits directors, manager and officers) to the extent they are employees, (B) engage in any transaction with any shareholder, member or partner that would constitute a conflict of interest (provided that each Transaction Document shall not be deemed to be such a transaction that would constitute a conflict of interest) or (C) pay dividends or make distributions to its owners other than in accordance with the provisions of this Indenture. This Section 7.4(b) shall not be binding to the extent inconsistent with the status of the Issuer as an entity disregarded from its sole owner for U.S. federal income tax purposes.
(c) The Co-IssuerIssuer will at all times have at least one Independent manager under the Limited Liability Company Agreement.
Appears in 1 contract
Samples: Indenture and Security Agreement (Owl Rock Core Income Corp.)
