Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG or any Affiliate thereof. (b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereof. (c) It shall obtain proper authorization for all action requiring such authorization. (d) It shall pay its own operating expenses and liabilities from its own funds. (e) It will insure that the annual financial statements of TPVG shall disclose the effects of the transactions contemplated in the Transaction Documents in accordance with GAAP. (f) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s assets may be included in a consolidated financial statement of TPVG provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of TPVG or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet. (g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower. (h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates. (i) It shall keep its assets and liabilities separate from those of all other entities. (j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing. (k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents. (l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders. (m) It shall not become involved in the day-to-day management of any other Person. (n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII. (o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents. (p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware. (q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates. (r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others. (s) It shall not act as an agent of any other Person in any capacity. (t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents. (u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person. (v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents. (w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations. (x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents. (y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower. (z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto. (aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing. (bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder. (cc) It will at all times comply with the provisions of its limited liability company agreement. (dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement). (ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith. (ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5. (gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person. (hh) It shall not commingle its assets with assets of any other Person. (ii) It shall, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction. (jj) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not require TPVG to make additional capital contributions to the Borrower. It will insure that it and TPVG do not take any action contrary to the “Assumptions and Facts” section in the opinion of Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain non-consolidation matters.
Appears in 3 contracts
Samples: Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.), Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.), Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.)
Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereof.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(e) It will insure that the annual financial statements of TPVG shall disclose the effects of the transactions contemplated in the Transaction Documents in accordance with GAAP.
(f) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s assets may be included in a consolidated financial statement of TPVG provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of TPVG or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.
(i) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shall, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jj) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not require TPVG to make additional capital contributions to the Borrower. It will insure that it and TPVG do not take any action contrary to the “Assumptions and Facts” section in the opinion of Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain non-consolidation matters.
Appears in 2 contracts
Samples: Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.), Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.)
Separate Existence. (a) The Borrower Such Loan Party shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower such Loan Party are available to pay the creditors of TPVG any of its equityholders or any Affiliate thereofthereof (it being understood that the assets of the Securitization Subsidiaries shall be pledged to secure the obligations of the Borrower).
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereofPerson, except to the extent that such Loan Party’s financial and operating results are consolidated with those of the Equityholder in consolidated financial statements or to the extent any Securitization Subsidiary’s financial and operating results are consolidated with those of a Loan Party.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own fundsfunds (other than in connection with administrative and other expenses owed by Securitization Subsidiaries, which may be paid by the Borrower); provided that, the Servicer may from time to time advance expenses of the Borrower for which the Servicer is later reimbursed pursuant to the priority of payments set forth in Article VIII.
(ed) It will insure shall ensure that the annual financial statements of TPVG the Borrower and the Equityholder shall disclose the effects of the transactions contemplated in the Transaction Documents hereby in accordance with GAAP.
(fe) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s assets may be included in a consolidated financial statement of TPVG provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of TPVG or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.
(i) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) . It shall not permit pledge its assets to secure the obligations of any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) Person. It shall not engage in transactions with guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy pay the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shall, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jj) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not require TPVG to make additional capital contributions to the Borrower. It will insure that it and TPVG do not take any action contrary to the “Assumptions and Facts” section in the opinion of Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain non-consolidation matters.
Appears in 2 contracts
Samples: Loan Financing and Servicing Agreement (Golub Capital Direct Lending Corp), Loan Financing and Servicing Agreement (Golub Capital BDC 4, Inc.)
Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereofPerson.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(ed) It will insure shall ensure that the annual financial statements of TPVG the Borrower and the Equityholder shall disclose the effects of the transactions contemplated in the Transaction Documents hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It will shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) It shall not (A) amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(i) Except for income tax and consolidated accounting purposes, it shall at all times hold itself out to the public and all other Persons as a legal entity separate from its Affiliates and from any other Person.
(j) It shall file its own tax returns separate from those of any other Person, except to the extent that it is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under Applicable Law.
(k) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(l) It shall maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s its assets may be included in a consolidated financial statement of TPVG provided that its Affiliate so long as (i) appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from TPVG such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of TPVG such Affiliate or any other Person and (ii) such assets shall also be listed on the Borrower’s its own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.
(i) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shallnot, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of and as otherwise expressly required or permitted by the BorrowerTransaction Documents, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jjn) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(o) It shall use separate invoices bearing its own name.
(p) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(q) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however however, that the foregoing shall not require TPVG its equityholders to make additional capital contributions contributions.
(r) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(s) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents.
(t) It shall not, to the Borrower. fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(u) It will insure shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(v) Except as expressly permitted by the Transaction Documents, it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or, except for Equity Securities acquired in connection with the acquisition of a Collateral Obligation or an offer, exchange, workout, restructuring or exercise of remedies with respect thereto, own any equity interest in any other entity.
(w) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Transaction Documents.
(x) It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(y) It shall allocate fairly and reasonably any overhead expenses that it are shared with any of its Affiliates, including for shared office space and TPVG do not for services performed by an employee of any Affiliate.
(z) Neither the Borrower nor the Equityholder shall take any action contrary to the “Assumptions and Facts” section in the opinion or opinions of Xxxxxxxx Xxxxxxx, Dechert LLP, dated the date hereof, relating to certain non-consolidation nonconsolidation and true sale matters.
(aa) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior written consent of one Independent Manager. The Constituent Documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Manager; (b) the Borrower shall not, without the prior written consent of such Independent Manager, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Manager shall consider only the interests of the Borrower, including its creditors; and (c) no Independent Manager of the Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Manager, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for an Independent Manager. No resignation or removal of an Independent Manager shall be effective until a successor Independent Manager is appointed and has accepted his or her appointment. No Independent Manager may be removed other than for Cause.
Appears in 2 contracts
Samples: Loan Financing and Sale Agreement (AB Private Credit Investors Corp), Loan Financing and Servicing Agreement (AB Private Credit Investors Corp)
Separate Existence. (a) The Borrower shall conduct its business solely in at all times: (i) maintain at least one Independent Manager; (ii) maintain its own name through its duly authorized officers or agents so as not to mislead others as separate books and records and bank accounts; (iii) hold itself out to the identity of public and all other Persons as a legal entity separate from any other Person; (iv) [reserved]; (v) file its own Tax returns, except to the entity with which such persons are concernedextent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and shall use its best efforts pay any Taxes so required to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of be paid by the Borrower are available to pay under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the creditors of TPVG or any Affiliate thereof.
(b) It shall maintain records and Borrower has established proper reserves on its books of account separate from those of TPVG and any other Affiliate thereof.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(e) It will insure that the annual financial statements of TPVG shall disclose the effects of the transactions contemplated in the Transaction Documents in accordance with GAAP.
Appropriate Accounting Principles; (fvi) It will maintain separate financial statements, showing not commingle its assets and liabilities separate and apart from those of any other Person and not have its with assets listed on any financial statement of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however however, that the Borrower’s assets may be included in a consolidated financial statement of TPVG provided that its Affiliate if (iA) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from TPVG such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of TPVG such Affiliate or any other Person and (iiB) such assets shall also be listed on the Borrower’s own separate balance sheet.
sheet (g) It will continuously maintain the resolutions, agreements and other instruments of if the Borrower underlying the transactions described in the Transaction Documents as official records prepares its own separate balance sheet); (ix) pay its own liabilities only out of the Borrower.
its own funds; (hx) It shall maintain an arm’s-arm’s length relationship with TPVG the Equityholder and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any each of its other Affiliates.
; (ixi) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
; (sxii) It shall allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not act pledge its assets as an agent security for the obligations of any other Person in any capacity.
Person; (txv) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
identity; (vxvi) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees adequate capital in light of its contemplated business operationspurpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its member or members keep minutes of all meetings and actions by written consent and observe in all respects all other limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates except as otherwise permitted under the Transaction Documents; (xix) [reserved]; (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents; and (xxi) not divide or permit any division of the Borrower under Applicable Law.
(xb) It The Borrower shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business business, other than the actions required or permitted to be performed under the preceding clause (ia) acquiring, owning, holding and or otherwise each Contract and contemplated pursuant to the Contract Collateral, Transaction Documents; (ii) entering into and performing its obligations under this Agreement, and fail to be solvent; (iii) activities incidental thereto.
(aa) It will not own release, sell, transfer, convey or assign any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply Obligation unless in accordance with the provisions of its limited liability company agreement.
Transaction Documents; (ddiv) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shall, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral and the related assets and incidental personal property necessary for the ownership or operation of these assets.
(jj) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not require TPVG to make additional capital contributions to the Borrower. It will insure that it and TPVG do not take any action contrary to the “Assumptions and Facts” section in the opinion of Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain non-consolidation matters.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Antares Strategic Credit Fund), Loan and Servicing Agreement (Antares Strategic Credit Fund)
Separate Existence. (a) The Borrower Such Loan Party shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower such Loan Party are available to pay the creditors of TPVG any of its equityholders or any Affiliate thereofthereof (it being understood that the assets of the Securitization Subsidiaries shall be pledged to secure the obligations of the Borrower).
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereofPerson, except to the extent that such Loan Party’s financial and operating results are consolidated with those of the Equityholder in consolidated financial statements or to the extent any Securitization Subsidiary’s financial and operating results are consolidated with those of a Loan Party.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own fundsfunds (other than in connection with administrative and other expenses owed by Securitization Subsidiaries, which may be paid by the Borrower).
(ed) It will insure shall ensure that the annual financial statements of TPVG the Borrower and the Equityholder shall disclose the effects of the transactions contemplated in the Transaction Documents hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It will shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person (other than any Securitization Subsidiary).
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equityholders.
(i) It shall not (A) amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and, other than in connection with entering into the Transaction Documents, with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(j) It shall at all times hold itself out to the public and all other Persons as separate from its Affiliates and from any other Person.
(k) It shall file its own tax returns separate from those of any other Person, except to the extent that it is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under Applicable Law, and shall pay any taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s its assets may be included in a consolidated financial statement of TPVG provided that (i) the Equityholder or to the extent any Securitization Subsidiary’s financial and operating results are consolidated with those of a Loan Party so long as appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from TPVG such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of TPVG such Affiliate or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.
(i) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shallnot, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of the Borrowerand as otherwise permitted pursuant to Section 9.34, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jjo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilitiesliabilities (it being understood that this covenant shall apply to the Borrower and the Securitization Subsidiaries on a combined basis); provided, however however, that the foregoing shall not require TPVG the Equityholder to make additional capital contributions contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(t) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person (other than the Securitization Subsidiaries), except that it may invest in those investments permitted under the Transaction Documents.
(u) It shall not, to the Borrower. fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It will insure shall not buy or hold evidence of indebtedness issued by any other Person (other than the Securitization Subsidiaries, and other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents, it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity (other than any Securitization Subsidiaries).
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Transaction Documents.
(y) It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and reasonably any overhead expenses that it are shared with any of its Affiliates, including for shared office space and TPVG do not for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder shall take any action contrary to the “Assumptions and Facts” section in the opinion or opinions of Xxxxxxxx Xxxxxxx, Dechert LLP, dated the date hereof, relating to certain non-consolidation nonconsolidation and true sale matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit any Loan Party to take any Material Action without the prior unanimous written consent of the Independent Member. The Constituent Documents of such Loan Party shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Member; provided that upon the death or incapacitation of the Independent Member, the Borrower shall replace such Independent Member with a new Independent Member within ten (10) Business Days of such death or incapacitation; (b) such Loan Party shall not, without the prior written consent of the Independent Member, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Member shall consider only the interests of such Loan Party, including its creditors; and (c) no Independent Member of the Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Member, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Member, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for an Independent Member. No resignation or removal of an Independent Member shall be effective until a successor Independent Member is appointed and has accepted his or her appointment. No Independent Member may be removed other than for Cause.
Appears in 2 contracts
Samples: Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.), Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.)
Separate Existence. The Depositor shall, except as otherwise provided herein or in a Transaction Document:
(ai) The Borrower Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall conduct its business solely in be necessary to protect the validity and enforceability of this Agreement, the Depositor Loan Trust Agreement, the Trust Agreement, the Loan Purchase Agreement, the other Transaction Documents to which it is a party and each other instrument or agreement necessary or appropriate to proper administration hereof or thereof and to permit and effectuate the transactions contemplated hereby or thereby;
(ii) Maintain its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, separate books and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG or any Affiliate thereof.
(b) It shall maintain records and books of account bank accounts separate from those of TPVG any Affiliate of the Depositor;
(iii) At all times hold itself out to the public as a separate legal and economic entity apart from any other Affiliate thereof.Person, and strictly comply with all organizational formalities to maintain its separate existence;
(civ) It shall obtain proper authorization for all action requiring such authorization.Have a board of managers separate from that of any other Person;
(dv) It shall Not incur, create or assume any indebtedness or other liabilities or obligations other than as expressly permitted under the Transaction Documents;
(vi) Correct any known misunderstanding regarding its separate identity and refrain from engaging in any activity that compromises the separate legal identity of the Depositor;
(vii) Maintain adequate capital and a sufficient number of employees, if any employees are so needed, in light of its contemplated business purposes, transactions and liabilities and in order to pay its own operating expenses debts as such debts become due;
(viii) Cause its board of managers to meet at least annually or act pursuant to written consent and liabilities from keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities;
(ix) Not acquire any obligations or securities of any Affiliate of the Depositor other than any securities of the Issuer as permitted by the Transaction Documents;
(x) File its own funds.tax returns, if any, as may be required under applicable law, to the extent (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(exi) It will insure that the annual financial statements of TPVG shall disclose the effects of the transactions Except as contemplated in by the Transaction Documents Documents, not commingle its assets with assets of any other Person;
(xii) Conduct its business in its own name;
(xiii) Maintain separate financial statements, prepared in accordance with GAAP.
(f) It will maintain separate financial statementsapplicable generally accepted accounting principles, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s assets may be included in Person other than as a consolidated financial statement of TPVG provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness consequence of the Borrower from TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations application of TPVG or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.consolidation rules in accordance with generally accepted accounting principles;
(gxiv) It will continuously maintain the resolutions, agreements Pay its own liabilities and other instruments expenses only out of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.its own funds;
(hxv) It shall maintain Maintain an arm’s-arm’s length relationship with TPVG and its Affiliatesunaffiliated parties, and shall not hold itself out or its credit or assets as being liable for enter into any transaction with an Affiliate of the debts and obligations of TPVG or any Depositor except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(xvi) Pay the salaries of its Affiliates.own employees, if any, only out of its own funds;
(ixvii) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or Not hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent any other Person nor pledge its assets for the benefit of any other Person in nor make any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person intercompany loans to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee of the Depositor or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, accept any intercompany loans from its own funds, and maintain a sufficient number any Affiliate of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions the Depositor except to the extent as permitted by the Transaction Documents.;
(yxviii) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contributionClearly identify its offices, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each caseif any, as may be made pursuant its offices and, to the Transaction Documents or other duly authorized extent that the Depositor and legal actions its Affiliates have offices in the same location, allocate fairly and reasonably any overhead expenses that are shared with such Affiliates, including services performed by an employee of TPVG and the Borrower.such Affiliates;
(zxix) It will not Ensure that it shall at all times have at least one Independent Manager and at least one officer;
(xx) Use separate stationery, invoices and checks bearing its own name; Not guarantee any obligation of any Affiliate;
(xxi) Not engage, directly or indirectly, in any business other than that required or permitted to be performed under the Depositor LLC Agreement, the Transaction Documents or this Section 2.07(f);
(ixxii) acquiring, owning, holding Not allow any borrowings or granting of a security interest or other transfer of assets between the Depositor and otherwise each Contract any other Person unless such action is permitted under the Transaction Documents and there is a business purpose for the Depositor and the Contract Collateral, (ii) entering into borrowing or granting of a security interest in or other transfer of assets was not and performing will not be intended to impair the rights or interests of creditors and was made in exchange for reasonably equivalent value and fair consideration and has been and will be appropriately documented and recorded in its obligations under this Agreement, and (iii) activities incidental thereto.records;
(aaxxiii) It will Will not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that the Depositor may invest in those investments permitted under the Transaction Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Transaction Documents and permit the same to remain outstanding in accordance with such provisions;
(xxiv) Not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any asset or property equity interest in any other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities entity except as expressly permitted hereunder.under the Transaction Documents; or
(ccxxv) It will at all times comply with Not, to the provisions fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or other transfer of any of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in assets outside the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent ordinary course of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewithCompany’s business.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shall, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jj) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not require TPVG to make additional capital contributions to the Borrower. It will insure that it and TPVG do not take any action contrary to the “Assumptions and Facts” section in the opinion of Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain non-consolidation matters.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (OneMain Financial Holdings, Inc.), Sale and Servicing Agreement (OneMain Financial Holdings, Inc.)
Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereof.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(e) It will insure that the annual financial statements of TPVG shall disclose the effects of the transactions contemplated in the Transaction Documents in accordance with GAAP.
(f) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s assets may be included in a consolidated financial statement of TPVG provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of TPVG or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.
(i) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not (A) amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewiththerewith or (B) divide or permit any division of itself.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shall, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jj) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not require TPVG to make additional capital contributions to the Borrower. It will insure that it and TPVG do not take any action contrary to the “Assumptions and Facts” section in the opinion of Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain non-consolidation matters.
Appears in 2 contracts
Samples: Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.), Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.)
Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG TPVC or any Affiliate thereof.
(b) i. It shall maintain records and books of account separate from those of TPVG TPVC and any other Affiliate thereof.
(c) ii. It shall obtain proper authorization for all action requiring such authorization.
(d) iii. It shall pay its own operating expenses and liabilities from its own funds.
(e) iv. It will insure that the annual financial statements of TPVG TPVC shall disclose the effects of the transactions contemplated in the Transaction Documents in accordance with GAAP.
(f) v. It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however however, that the Borrower’s assets may be included in a consolidated financial statement of TPVG TPVC provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from TPVG TPVC and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of TPVG TPVC or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.
(g) vi. It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) vii. It shall maintain an arm’s-length arm’s‑length relationship with TPVG TPVC and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG TPVC or any of its Affiliates.
(i) viii. It shall keep its assets and liabilities separate from those of all other entities.
(j) ix. It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) x. It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) xi. It shall insure that any consolidated financial statements of TPVG TPVC have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) xii. It shall not become involved in the day-to-day management of any other Person.
(n) xiii. It shall not permit any Person other than TPVG the Equityholder to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) xiv. It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) xv. It shall observe all formalities required of a limited liability borrower company under the laws of the State of DelawareMaryland.
(q) xvi. It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) xvii. It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) xviii. It shall not act as an agent of any other Person in any capacity.
(t) xix. It shall not act as agent of TPVG Equityholder or any other Person nor permit TPVG Equityholder or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) xx. It shall correct any known misunderstanding regarding its separate identity from TPVG the Equityholder or any other Person.
(v) xxi. It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) xxii. It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) xxiii. It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) xxiv. It shall not permit TPVG the Equityholder or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG the Equityholder and the Borrower.
(z) xxv. It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise managing each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) xxvi. It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) xxvii. It will not incur, create or assume any indebtedness or liabilities Indebtedness except as expressly permitted hereunder.
(cc) xxviii. It will at all times comply with the provisions of its limited liability company agreement.
(dd) xxix. It will at all times be a limited liability company formed under Delaware the laws of the State of Maryland which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) xxx. It shall not (A) amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewiththerewith or (B) divide or permit any division of itself.
(ff) xxxi. It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) xxxii. It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG the Equityholder and from any other Person.
(hh) xxxiii. It shall not commingle its assets with assets of any other Person.
(ii) xxxiv. It shall, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jj) xxxv. It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however however, that the foregoing shall not require TPVG the Equityholder to make additional capital contributions to the Borrower. It will insure that it and TPVG the Equityholder do not take any action contrary to the “Assumptions and Facts” section in the opinion of Xxxxxxxx Xxxxxxx, LLPOtterbourg P.C., dated the date hereof, relating to certain non-consolidation nonconsolidation matters.
Appears in 1 contract
Samples: Omnibus Amendment to Transaction Documents (TriplePoint Private Venture Credit Inc.)
Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereofPerson.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(ed) It will insure shall ensure that the annual consolidated financial statements of TPVG the Borrower and the Equityholder shall disclose the effects of the transactions contemplated in the Transaction Documents hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It will shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(i) It shall not (A) amend, supplement or otherwise modify the Special Purpose Provisions contained in its organizational documents (as defined therein), except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(j) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from its member and its Affiliates and from any other Person.
(k) It shall file its own tax returns separate from those of any other Person, except to the extent that it is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under Applicable Law, and shall pay any taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s its assets may be included in a consolidated financial statement of TPVG provided that its Affiliate so long as (i) appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from TPVG such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of TPVG such Affiliate or any other Person and (ii) such assets shall also be listed on the Borrower’s its own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.
(i) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shallnot, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its organizational documents and properly reflected on the its books and records of the Borrowerrecords, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jjo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however however, that the foregoing shall not require TPVG its equityholders to make additional capital contributions contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(t) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not, to the Borrower. fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It will insure shall not buy or hold evidence of indebtedness issued by any other Person, except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits, for the avoidance of doubt, the formation of REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Transaction Documents.
(y) It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and reasonably any overhead expenses that it are shared with any of its Affiliates, including for shared office space and TPVG do not for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder shall take any action contrary to the “Assumptions and FactsAssumptions” section in the opinion or opinions of Xxxxxxxx Xxxxxxx, Eversheds Sutherland (US) LLP, dated the date hereof, relating to certain non-consolidation nonconsolidation matters or the “Facts and Assumptions” section in the opinion of Eversheds Xxxxxxxxxx (US) LLP, dated the date hereof, relating to certain true sale matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior written consent of at least one Independent Manager (or the unanimous written consent of all Independent Managers, if more than one). The organizational documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Manager (or the unanimous written consent of all Independent Managers, if more than one); (b) the Borrower shall not, without the prior written consent of at least one Independent Manager, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Manager(s) shall consider only the interests of the Borrower, including its creditors; and (c) no Independent Manager of the Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Manager, together with a statement as to the reasons for such removal, and (ii) if a replacement, the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for an Independent Manager. No resignation or removal of an Independent Manager shall be effective until a successor Independent Manager is appointed and has accepted his or her appointment. No Independent Manager may be removed other than for Cause.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Capital Southwest Corp)
Separate Existence. (a) The Borrower Seller shall conduct its business solely be operated in its own name through its duly authorized officers or agents so as not to mislead others as to such a manner that the identity separate corporate existence of the entity with which such persons are concerned, Seller and shall use its best efforts to avoid the appearance that it is conducting business on behalf Motor Coach Entities would not be disregarded in the event of any Affiliate thereof a bankruptcy or that the assets insolvency of the Borrower are available to pay the creditors of TPVG Seller or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereof.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(e) It will insure that Motor Coach Entity, and, without limiting the annual financial statements of TPVG shall disclose the effects of the transactions contemplated in the Transaction Documents in accordance with GAAP.
(f) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s assets may be included in a consolidated financial statement of TPVG provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of TPVG or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.foregoing:
(i) It the Seller shall keep at all times be a corporation whose activities are restricted as set forth in its assets and liabilities separate from those certificate or articles of all other entities.incorporation;
(jii) It no Motor Coach Entity shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become be involved in the day-to-day management of the Borrower, Seller (except that to the Collateral Manager is permitted to manage extent expressly contemplated by this Agreement or any other Related Document);
(iii) other than the assets sale of the Borrower Receivables and Leased Vehicles pursuant to Article VII.
(o) It this Agreement and other actions permitted under this Agreement, the Seller shall not engage in any intercorporate transactions with any other Person other than those activities permitted by the Transaction Documents.Motor Coach Entity;
(piv) It the Seller shall maintain separate corporate records and books of account from each Motor Coach Entity, hold regular corporate meetings and otherwise observe all corporate formalities required and have separate office space from each Motor Coach Entity, if any;
(v) the financial statements and books and records of a limited liability borrower under Motor Coach and any other entity whose financial statements are consolidates with the laws Seller prepared after the Initial Closing Date shall reflect the separate corporate existence of the State of Delaware.Seller;
(qvi) It the Seller shall allocate not act as agent for any Motor Coach Entity and charge fairly and reasonably any common employee or overhead shared with Affiliates.shall hold itself out to the public as a corporation separate from each such Motor Coach Entity;
(rvii) It the Seller shall maintain its assets separately from the assets of any Motor Coach Entity (including through the maintenance of separate bank accounts and except for any Records to the extent necessary for the servicing of the Receivables); the Seller's funds and assets, and records relating thereto, shall not assumebe commingled with those of any Motor Coach Entity; and the separate creditors of the Seller will be entitled to be satisfied out of the Seller's assets prior to any value in the Seller becoming available to the Seller's equity holders;
(viii) except as expressly contemplated under this Agreement and the Related Documents and those associated with the creation and organization of the Seller and the preparation of this Agreement and the Related Documents, no Motor Coach Entity shall (A) pay the Seller's expenses; (B) guarantee the Seller's obligations, or guarantee any other Person’s obligations or (C) advance funds to any other Person the Seller for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.otherwise; and
(six) It all business correspondence of the Seller and other communications shall not act as an agent of any other Person be conducted in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agentthe Seller's own name, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from on its own funds, stationery and maintain through a sufficient number of employees in light of its contemplated business operationsseparately-listed telephone number.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shall, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jj) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not require TPVG to make additional capital contributions to the Borrower. It will insure that it and TPVG do not take any action contrary to the “Assumptions and Facts” section in the opinion of Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain non-consolidation matters.
Appears in 1 contract
Samples: Receivables Sale Agreement (Motor Coach Industries International Inc)
Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereofPerson.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(ed) It will insure shall ensure that the annual financial statements of TPVG the Borrower and the Equityholder shall disclose the effects of the transactions contemplated in the Transaction Documents hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It will shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equityholders.
(i) It shall not (A) amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(j) It shall at all times hold itself out to the public and all other Persons as separate from its Affiliates and from any other Person.
(k) It shall file its own tax returns separate from those of any other Person, except to the extent that it is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under Applicable Law, and shall pay any federal and other material taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s its assets may be included in a consolidated financial statement of TPVG provided that its Affiliate so long as (i) appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from TPVG such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of TPVG such Affiliate or any other Person and (ii) such assets shall also be listed on the Borrower’s its own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.
(i) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shallnot, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of and the Borrowertransactions contemplated by the Transaction Documents, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jjo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however however, that the foregoing shall not require TPVG its equityholders to make additional capital contributions contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(t) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not, to the Borrower. fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It will insure shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits, for the avoidance of doubt, the formation of REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity, other than any equity interests received in connection with any workout or exchange of any Collateral Obligation, or any insolvency of the related Obligor.
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Transaction Documents.
(y) It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and reasonably any overhead expenses that it are shared with any of its Affiliates, including for shared office space and TPVG do not for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder shall take any action contrary to the “Assumptions and Facts” section in the opinion or opinions of Xxxxxxxx Xxxxxxx, Winston & Xxxxxx LLP, dated the date hereof, relating to certain non-consolidation nonconsolidation and true sale matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior unanimous written consent of one Independent Manager. The Constituent Documents of the Borrower shall include the following provisions: (i) at all times there shall be, and Borrower shall cause there to be, at least one Independent Managers; (ii) the Borrower shall not, without the prior written consent of one Independent Manager, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Manager shall consider only the interests of the Borrower, including its creditors; and (iii) no Independent Manager of the Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (x) any proposed removal of an Independent Manager, together with a statement as to the reasons for such removal, and (y) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements set forth in the Constituent Documents of the Borrower for an Independent Manager. No resignation or removal of an Independent Manager shall be effective until a successor Independent Manager is appointed and has accepted his or her appointment. No Independent Manager may be removed other than for Cause.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Vista Credit Strategic Lending Corp.)
Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG UACC or any Affiliate thereofthereof (other than as expressly provided herein).
(b) It shall maintain corporate records and books of account separate from those of TPVG UACC and any other Affiliate thereof.
(c) It shall obtain proper authorization for all corporate action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(e) It will insure that the annual financial statements of TPVG UACC shall disclose the effects of the transactions contemplated in the Transaction Documents hereby in accordance with GAAP.
(f) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s assets may be included in a consolidated financial statement of TPVG provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of TPVG or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.
(g) It will continuously maintain the The resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents shall be continuously maintained by the Borrower as official records of the Borrower.
(hg) It shall maintain an arm’s-length relationship with TPVG UACC and its other Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG UACC or any of its other Affiliates.
(ih) It shall keep its assets and liabilities separate from those of all other entitiesentities other than as permitted by the Transaction Documents.
(ji) It shall maintain the The books and records of the Borrower shall be maintained at the principal business office address designated herein for receipt of the Borrowernotices, unless the Borrower shall otherwise advise the parties hereto in writing.
(kj) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with as otherwise permitted by the Transaction Documents.
(lk) It shall insure that any consolidated financial statements of TPVG UACC have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(eel) It shall not amend, supplement or otherwise modify (i) its organizational organization documents, except in accordance therewith and with the prior written consent of the Administrative Agent Required Lenders (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement bylaws except in accordance therewith.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shall, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jj) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not require TPVG to make additional capital contributions to the Borrower. It will insure that it and TPVG do not take any action contrary to the “Assumptions and Facts” section in the opinion of Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain non-consolidation matters.
Appears in 1 contract
Samples: Receivables Financing Agreement (United Pan Am Financial Corp)
Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best commercially reasonable efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG CCRT, CAR or any Affiliate thereof.
thereof (b) other than as expressly provided herein). It shall maintain corporate records and books of account separate from those of TPVG CCRT, CAR and any other Affiliate thereof.
(c) . It shall obtain proper authorization for all corporate action requiring such authorization.
(d) It . Other than organizational expenses and as expressly provided herein or in the other Transaction Documents, it shall pay its own operating expenses and liabilities from its own funds.
(e) . It will insure that the annual financial statements of TPVG CCRT and the financial statements of CAR shall disclose the effects of the transactions contemplated in the Transaction Documents hereby in accordance with GAAP.
(f) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s assets may be included in a consolidated financial statement of TPVG provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of TPVG or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.
(g) It will continuously maintain the . The resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents shall be continuously maintained by the Borrower as official records of the Borrower.
(h) . It shall maintain an arm’s-length relationship with TPVG CCRT and CAR and its other Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts of CCRT and obligations of TPVG CAR or any of its their respective Affiliates.
(i) . It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain entities other than as permitted by the Transaction Documents. The books and records of the Borrower shall be maintained at the principal business office address designated herein for receipt of the Borrowernotices, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) . It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with as otherwise permitted by the Transaction Documents.
(l) . It shall insure that any consolidated financial statements of TPVG CCRT and the financial statements of CAR have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) . It shall not amend, supplement or otherwise modify (i) its organizational documents, except articles of incorporation in accordance therewith and with any respect that affects its limited purpose or its separateness covenants without the prior written consent of the Administrative Agent Required Lenders (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except bylaws in accordance therewithany manner that is inconsistent therewith or with its articles of incorporation.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shall, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jj) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not require TPVG to make additional capital contributions to the Borrower. It will insure that it and TPVG do not take any action contrary to the “Assumptions and Facts” section in the opinion of Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain non-consolidation matters.
Appears in 1 contract
Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereof. It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(e) It will insure shall ensure that the annual financial statements of TPVG shall disclose the effects of the transactions contemplated in the Transaction Documents in accordance with GAAP.
(f) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder. It shall not assume, pay or guarantee any obligation of any Person, including any Affiliate, or advance funds to any other Person for the payment of expenses or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person. It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(g) It shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(h) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(i) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equityholders.
(j) It shall not (A) amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith or (B) divide or permit any division of itself.
(k) It shall at all times hold itself out to the public and all other Persons as separate from its Affiliates (including TPVG) and from any other Person. It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(l) It shall file its own tax returns separate from those of any other Person, except to the extent that it is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under Applicable Law, and shall pay any taxes required to be paid under Applicable Law.
(m) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence. It shall at all times comply with the provisions of its limited liability company agreement.
(n) It shall maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however provided that the Borrower’s assets may be included in a consolidated financial statement of TPVG provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of TPVG or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(ho) It shall maintain not, except for capital contributions or capital distributions permitted under the terms and conditions of its Constituent Documents and properly reflected on its books and records, enter into any transaction with an Affiliate except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.
(i) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) transaction. It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(zp) It will not engageshall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, directly if any, only from its own funds. It shall compensate its employees, consultants or indirectlyagents, in any business other than (i) acquiringif any, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing from its obligations under this Agreementown funds, and (iii) activities incidental theretomaintain a sufficient number of employees in light of its contemplated business operations.
(aaq) It will shall use separate invoices bearing its own name.
(r) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of TPVG or any other Person.
(s) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not require TPVG to make additional capital contributions to the Borrower.
(t) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(u) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents.
(v) It shall not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(w) It shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(x) Except as expressly permitted by the Transaction Documents, it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(y) It shall not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoingforegoing and such other financial assets as permitted by the Transaction Documents.
(z) It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(aa) It shall allocate fairly and reasonably any overhead expenses that are shared with any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(bb) It will not incurshall continuously maintain the resolutions, create or assume any indebtedness or liabilities except agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as expressly permitted hereunderofficial records of the Borrower.
(cc) It will at all times comply shall maintain an arm’s length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the provisions debts and obligations of TPVG or any of its limited liability company agreementAffiliates.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth shall not become involved in the day-to-day management of any other Person. It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower’s limited liability company agreement), except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(ee) It shall not amend, supplement act as an agent of any other Person in any capacity. It shall not act as agent of TPVG or otherwise modify (i) any other Person nor permit TPVG or any other Person to act as its organizational documentsagent, except in accordance therewith and with to the prior written consent of limited extent permitted under the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewithTransaction Documents.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shall, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of Neither the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jj) It nor TPVG shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not require TPVG to make additional capital contributions to the Borrower. It will insure that it and TPVG do not take any action contrary to the “Assumptions and Facts” section in the opinion of Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain non-consolidation matters.
(hh) Neither the Collateral Manager nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior unanimous written consent of two Independent Members. The Constituent Documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least two Independent Members; (b) the Borrower shall not, without the prior written consent of both Independent Members, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Members shall consider only the interests of the Borrower, including its creditors; and (d) no Independent Member of the Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Member, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Member, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for an Independent Member. No resignation or removal of an Independent Member shall be effective until a successor Independent Member is appointed and has accepted his or her appointment. No Independent Member may be removed other than for Cause.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (TriplePoint Venture Growth BDC Corp.)
Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereofPerson.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(ed) It will insure shall ensure that the annual financial statements of TPVG the Borrower and the Equityholder shall disclose the effects of the transactions contemplated in the Transaction Documents hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It will shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equityholders.
(i) It shall not (A) amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(j) It shall at all times hold itself out to the public and all other Persons as separate from its Affiliates and from any other Person.
(k) It shall file its own tax returns separate from those of any other Person, except to the extent that it is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under Applicable Law, and shall pay any taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s its assets may be included in a consolidated financial statement of TPVG provided that its Affiliate so long as (i) appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from TPVG such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of TPVG such Affiliate or any other Person and (ii) such assets shall also be listed on the Borrower’s its own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.
(i) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shallnot, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of the Borrowerrecords, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jjo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however however, that the foregoing shall not require TPVG its equityholders to make additional capital contributions contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(t) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not, to the Borrower. fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It will insure shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits the formation of REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Transaction Documents.
(y) It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and reasonably any overhead expenses that it are shared with any of its Affiliates, including for shared office space and TPVG do not for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder shall take any action contrary to the “Assumptions and Facts” section in the opinion or opinions of Xxxxxx Xxxxxxxx Xxxxxxx, Xxxxx & Xxxxxxxx LLP, dated the date hereof, relating to certain non-consolidation nonconsolidation and true sale matters.
(bb) Neither the Services Provider nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior written consent of the Independent Manager. The Constituent Documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Manager; (b) the Borrower shall not, without the prior written consent of the Independent Manager, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Manager shall consider only the interests of the Borrower, including its creditors; and (d) no Independent Manager of the Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Manager, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for an Independent Manager. No resignation or removal of an Independent Manager shall be effective until a successor Independent Manager is appointed and has accepted his or her appointment. No Independent Manager may be removed other than for Cause.
(cc) It shall not divide or permit any division of the Borrower.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Owl Rock Capital Corp)
Separate Existence. (a) The Borrower Seller shall conduct its business solely be operated in its own name through its duly authorized officers or agents so as not to mislead others as to such a manner that the identity separate corporate existence of the entity with which such persons are concerned, Seller and shall use its best efforts to avoid the appearance that it is conducting business on behalf Motor Coach Entities would not be disregarded in the event of any Affiliate thereof a bankruptcy or that the assets insolvency of the Borrower are available to pay the creditors of TPVG Seller or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereof.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(e) It will insure that Motor Coach Entity, and, without limiting the annual financial statements of TPVG shall disclose the effects of the transactions contemplated in the Transaction Documents in accordance with GAAP.
(f) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s assets may be included in a consolidated financial statement of TPVG provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of TPVG or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.foregoing:
(i) It the Seller shall keep at all times be a limited purpose corporation whose activities are restricted as set forth in its assets and liabilities separate from those certificate or articles of all other entities.incorporation;
(jii) It no Motor Coach Entity shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become be involved in the day-to-day management of the Borrower, Seller (except that to the Collateral Manager is permitted to manage extent expressly contemplated by this Agreement or any other Related Document);
(iii) other than the assets sale of the Borrower Receivables or Leased Vehicles pursuant to Article VII.
(o) It this Agreement and other actions permitted under this Agreement, the Seller shall not engage in any intercorporate transactions with any other Person other than those activities permitted by the Transaction Documents.Motor Coach Entity;
(piv) It the Seller shall maintain separate corporate records and books of account from each Motor Coach Entity, hold regular corporate meetings and otherwise observe all corporate formalities required and have separate office space from each Motor Coach Entity, if any;
(v) the financial statements and books and records of a limited liability borrower under Motor Coach and any other entity whose financial statements are consolidates with the laws Seller prepared after the Initial Closing Date shall reflect the separate corporate existence of the State of Delaware.Seller;
(qvi) It the Seller shall allocate not act as agent for any Motor Coach Entity and charge fairly and reasonably any common employee or overhead shared with Affiliates.shall hold itself out to the public as a corporation separate from each such Motor Coach Entity;
(rvii) It the Seller shall maintain its assets separately from the assets of any Motor Coach Entity (including through the maintenance of separate bank accounts and except for any Records to the extent necessary for the servicing of the Receivables); the Seller's funds and assets, and records relating thereto, shall not assumebe commingled with those of any Motor Coach Entity; and the separate creditors of the Seller will be entitled to be satisfied out of the Seller's assets prior to any value in the Seller becoming available to the Seller's equity holders;
(viii) except as expressly contemplated under this Agreement and the Related Documents and those associated with the creation and organization of the Seller and the preparation of this Agreement and the Related Documents, no Motor Coach Entity shall (A) pay the Seller's expenses; (B) guarantee the Seller's obligations, or guarantee any other Person’s obligations or (C) advance funds to any other Person the Seller for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.otherwise; and
(six) It all business correspondence of the Seller and other communications shall not act as an agent of any other Person be conducted in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agentthe Seller's own name, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from on its own funds, stationery and maintain through a sufficient number of employees in light of its contemplated business operationsseparately-listed telephone number.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shall, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jj) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not require TPVG to make additional capital contributions to the Borrower. It will insure that it and TPVG do not take any action contrary to the “Assumptions and Facts” section in the opinion of Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain non-consolidation matters.
Appears in 1 contract
Samples: Receivables Sale Agreement (Motor Coach Industries International Inc)
Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereofPerson.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(ed) It will insure that the annual financial statements of TPVG shall disclose the effects of the transactions contemplated in the Transaction Documents in accordance with GAAP.
(f) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s assets may be included in a consolidated financial statement of TPVG provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of TPVG or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being liable for available to pay the debts and obligations of TPVG or any of its Affiliatesother Person.
(ie) It shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(jf) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which separate from any Affiliate is an account partyother person or entity, into which including any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction DocumentsAffiliate.
(lg) It To the extent required under GAAP, it shall insure ensure that any consolidated financial statements of TPVG including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(mh) It shall not become involved in the day-to-day management of any other Person.
(nA) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documentsdocuments (as defined therein), except in accordance therewith and with the prior written consent of the Administrative Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (iiB) its limited liability company agreement except in accordance therewithdivide or permit any division of itself.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(ggi) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG its member and from any other PersonPerson (other than, if applicable, for U.S. federal income tax purposes).
(hhj) It shall not commingle file its assets with assets own Tax returns separate from those of any other Person.
(ii) It shall, if and to the extent required to file tax returns under Applicable Law, except to the extent that it is treated as a “disregarded entity” for capital contributions tax purposes and is not required to file Tax returns under Applicable Law. -106- USActive 49316845.1249316845.13 such equity interests; provided that so long as (x) no Event of Default or capital distributions permitted under Unmatured Event of Default shall have occurred and be continuing, (y) the terms Waiver Period shall have ended and conditions (z) the Portfolio LTV is equal to or less than 65.0%, the Borrower may make a distribution of this Agreement and properly reflected (A) amounts paid to it pursuant to Section 8.3(a) on the books applicable Distribution Date and records (B) the proceeds of any Advance on the applicable Advance Date, but only if such Advance is made in respect of an Eligible Collateral Obligation acquired by such Borrower on such Advance Date and none of the Borrower, not enter into any transaction with an Affiliate proceeds from such Advance are needed to settle the acquisition of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transactionsuch Eligible Collateral Obligation.
(jj) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not require TPVG to make additional capital contributions to the Borrower. It will insure that it and TPVG do not take any action contrary to the “Assumptions and Facts” section in the opinion of Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain non-consolidation matters.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Oaktree Strategic Income Corp)
Separate Existence. The Depositor shall, except as otherwise provided herein or in a Transaction Document:
(ai) The Borrower Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall conduct its business solely in be necessary to protect the validity and enforceability of this Agreement, the Depositor Loan Trust Agreement, the Trust Agreement, the Loan Purchase Agreement, the other Transaction Documents to which it is a party and each other instrument or agreement necessary or appropriate to proper administration hereof or thereof and to permit and effectuate the transactions contemplated hereby or thereby;
(ii) Maintain its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, separate books and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG or any Affiliate thereof.
(b) It shall maintain records and books of account bank accounts separate from those of TPVG any Affiliate of the Depositor;
(iii) At all times hold itself out to the public as a separate legal and economic entity apart from any other Affiliate thereof.Person, and strictly comply with all organizational formalities to maintain its separate existence;
(civ) It shall obtain proper authorization for all action requiring such authorization.Have a board of managers separate from that of any other Person;
(dv) It shall Not incur, create or assume any indebtedness or other liabilities or obligations other than as expressly permitted under the Transaction Documents;
(vi) Correct any known misunderstanding regarding its separate identity and refrain from engaging in any activity that compromises the separate legal identity of the Depositor;
(vii) Maintain adequate capital and a sufficient number of employees, if any employees are so needed, in light of its contemplated business purposes, transactions and liabilities and in order to pay its own operating expenses debts as such debts become due;
(viii) Cause its board of managers to meet at least annually or act pursuant to written consent and liabilities from keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities;
(ix) Not acquire any obligations or securities of any Affiliate of the Depositor other than any securities of the Issuer as permitted by the Transaction Documents;
(x) File its own funds.tax returns, if any, as may be required under applicable law, to the extent (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(exi) It will insure that the annual financial statements of TPVG shall disclose the effects of the transactions Except as contemplated in by the Transaction Documents Documents, not commingle its assets with assets of any other Person;
(xii) Conduct its business in its own name;
(xiii) Maintain separate financial statements, prepared in accordance with GAAP.
(f) It will maintain separate financial statementsapplicable generally accepted accounting principles, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s assets may be included in Person other than as a consolidated financial statement of TPVG provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness consequence of the Borrower from TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations application of TPVG or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.consolidation rules in accordance with generally accepted accounting principles;
(gxiv) It will continuously maintain the resolutions, agreements Pay its own liabilities and other instruments expenses only out of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.its own funds;
(hxv) It shall maintain Maintain an arm’s-arm’s length relationship with TPVG and its Affiliatesunaffiliated parties, and shall not hold itself out or its credit or assets as being liable for enter into any transaction with an Affiliate of the debts and obligations of TPVG or any Depositor except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction; funds;
(xvi) Pay the salaries of its Affiliates.own employees, if any, only out of its own
(ixvii) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or Not hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent any other Person nor pledge its assets for the benefit of any other Person in nor make any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person intercompany loans to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee of the Depositor or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, accept any intercompany loans from its own funds, and maintain a sufficient number any Affiliate of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions the Depositor except to the extent as permitted by the Transaction Documents.;
(yxviii) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contributionClearly identify its offices, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each caseif any, as may be made pursuant its offices and, to the Transaction Documents or other duly authorized extent that the Depositor and legal actions its Affiliates have offices in the same location, allocate fairly and reasonably any overhead expenses that are shared with such Affiliates, including services performed by an employee of TPVG and the Borrower.such Affiliates;
(zxix) It will not Ensure that it shall at all times have at least one Independent Manager and at least one officer;
(xx) Use separate stationery, invoices and checks bearing its own name; Not guarantee any obligation of any Affiliate;
(xxi) Not engage, directly or indirectly, in any business other than that required or permitted to be performed under the Depositor LLC Agreement, the Transaction Documents or this Section 2.07(f);
(ixxii) acquiring, owning, holding Not allow any borrowings or granting of a security interest or other transfer of assets between the Depositor and otherwise each Contract any other Person unless such action is permitted under the Transaction Documents and there is a business purpose for the Depositor and the Contract Collateral, (ii) entering into borrowing or granting of a security interest in or other transfer of assets was not and performing will not be intended to impair the rights or interests of creditors and was made in exchange for reasonably equivalent value and fair consideration and has been and will be appropriately documented and recorded in its obligations under this Agreement, and (iii) activities incidental thereto.records;
(aaxxiii) It will Will not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that the Depositor may invest in those investments permitted under the Transaction Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Transaction Documents and permit the same to remain outstanding in accordance with such provisions;
(xxiv) Not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any asset or property equity interest in any other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities entity except as expressly permitted hereunder.under the Transaction Documents; or
(ccxxv) It will at all times comply with Not, to the provisions fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or other transfer of any of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in assets outside the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent ordinary course of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewithCompany’s business.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shall, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jj) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not require TPVG to make additional capital contributions to the Borrower. It will insure that it and TPVG do not take any action contrary to the “Assumptions and Facts” section in the opinion of Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain non-consolidation matters.
Appears in 1 contract
Samples: Sale and Servicing Agreement (OneMain Financial Holdings, Inc.)
Separate Existence. (ai) The At all times since its formation, the Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concernedhas accurately maintained, and shall use will continue to accurately maintain, in all material respects, its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG or any Affiliate thereof.
(b) It shall maintain financial statements, accounting records and books of account other corporate documents, as applicable, separate from those of TPVG the Services Provider and any other Affiliate thereof.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(e) It will insure that the annual financial statements of TPVG shall disclose the effects of the transactions contemplated in the Transaction Documents in accordance with GAAP.
(f) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however however, that if the Borrower’s assets may be included in a Borrower prepares consolidated financial statement of TPVG provided that statements with any Affiliates, (iy) appropriate notation shall be made on any such consolidated financial statements to indicate the separateness of the Borrower from TPVG and to indicate that shall contain a note indicating the Borrower’s separateness from any such Affiliates and indicate its assets and credit are not available to satisfy pay the debts and other obligations of TPVG such Affiliate or any other Person and (iiz) if the Borrower prepares its own separate balance sheet, such assets shall also be listed on the Borrower’s own separate balance sheet.
(g) It . The Borrower has not at any time since its formation commingled, and will continuously maintain the resolutionsnot commingle, agreements and other instruments its assets with those of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.
(i) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG Services Provider or any other Person. The Borrower has at all times since its formation accurately maintained, in all material respects, and will continue to accurately maintain in all material respects, its own bank accounts and separate books of account.
(ii) The Borrower has at all times since its formation paid, and will continue to pay, its own liabilities from its own separate assets.
(iii) The Borrower has at all times since its formation identified itself, and will continue to identify itself, in all dealings with the public, under its own name and as a separate and distinct entity, except as may be required for tax purposes. The Borrower has not at any time since its formation identified itself, and will not identify itself, as being a division or a part of any other entity.
(iv) The Borrower will comply at all times with the provisions of its Constituent Documents relating to separateness, bankruptcy remoteness and any similar provisions in effect on the Closing Date without regard to subsequent amendments thereto.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities The Borrower (in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply accordance with the provisions of its limited liability company agreement.
(ddConstituent Documents) It will at all times be a limited liability company formed under Delaware which has have at least (i) two one director that is an independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement)director complying with any applicable rating agency criteria.
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shall, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jj) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not require TPVG to make additional capital contributions to the Borrower. It will insure that it and TPVG do not take any action contrary to the “Assumptions and Facts” section in the opinion of Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain non-consolidation matters.
Appears in 1 contract
Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereofPerson.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(ed) It will insure shall ensure that the annual financial statements of TPVG the Borrower and the Equityholder shall disclose the effects of the transactions contemplated in the Transaction Documents hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It will shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equityholders.
(i) It shall not (A) amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(j) It shall at all times hold itself out to the public and all other Persons as separate from its Affiliates and from any other Person.
(k) It shall file its own tax returns separate from those of any other Person, except to the extent that it is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under Applicable Law, and shall pay any federal and other material taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s its assets may be included in a consolidated financial statement of TPVG provided that its Affiliate so long as (i) appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from TPVG such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of TPVG such Affiliate or any other Person and (ii) such assets shall also be listed on the Borrower’s its own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.
(i) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shallnot, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of the Borrowerrecords, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jjo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however however, that the foregoing shall not require TPVG its equityholders to make additional capital contributions contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(t) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not, to the Borrower. fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It will insure shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits, for the avoidance of doubt, the formation of REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Transaction Documents.
(y) It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and reasonably any overhead expenses that it are shared with any of its Affiliates, including for shared office space and TPVG do not for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder shall take any action contrary to the “Assumptions Facts and FactsAssumptions” section in the opinion or opinions of Xxxxxxxx Xxxxxxx, Xxxxxx & Xxxxxxx LLP, dated the date hereof, relating to certain non-consolidation nonconsolidation and true sale matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior unanimous written consent of one Independent Manager. The Constituent Documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Managers; (b) the Borrower shall not, without the prior written consent of one Independent Manager, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Manager shall consider only the interests of the Borrower, including its creditors; and (c) no Independent Manager of the Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Manager, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements set forth in the Constituent Documents of the Borrower for an Independent Manager. No resignation or removal of an Independent Manager shall be effective until a successor Independent Manager is appointed and has accepted his or her appointment. No Independent Manager may be removed other than for Cause.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (SCP Private Credit Income BDC LLC)
Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereofPerson.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(ed) It will insure shall ensure that the annual financial statements of TPVG the Borrower and the Equityholder shall disclose the effects of the transactions contemplated in the Transaction Documents hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It will shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to (i) Excluded Amounts and (ii) each Agent Account, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equityholders.
(i) It shall not (A) amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(j) It shall at all times hold itself out to the public and all other Persons as separate from its Affiliates and from any other Person.
(k) It shall file its own tax returns separate from those of any other Person, except to the extent that it is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under Applicable Law, and shall pay any taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s its assets may be included in a consolidated financial statement of TPVG provided that its Affiliate so long as (i) appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from TPVG such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of TPVG such Affiliate or any other Person and (ii) such assets shall also be listed on the Borrower’s its own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.
(i) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shallnot, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of the Borrowerrecords, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jjo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however however, that the foregoing shall not require TPVG its equityholders to make additional capital contributions contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(t) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not, to the Borrower. fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It will insure shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits the formation of REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Transaction Documents.
(y) It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and reasonably any overhead expenses that it are shared with any of its Affiliates, including for shared office space and TPVG do not for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder shall take any action contrary to the “Assumptions and Facts” section in the opinion or opinions of Xxxxxxxx Xxxxxxx, Exxxxxxxx Xxxxxxxxxx (US) LLP, dated the date hereof, relating to certain non-consolidation nonconsolidation and true sale matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior unanimous written consent of the Independent Manager. The Constituent Documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Manager; (b) the Borrower shall not, without the prior written consent of the Independent Manager, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Manager shall consider only the interests of the Borrower, including its creditors; and (d) the Independent Manager of the Borrower may not be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of the Independent Manager, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for the Independent Manager. No resignation or removal of the Independent Manager shall be effective until a successor Independent Manager is appointed and has accepted his or her appointment. The Independent Manager may not be removed other than for Cause.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (MSD Investment Corp.)
Separate Existence. The Borrower shall take all reasonable steps (including, without limitation, all steps that the Agent may from time to time reasonably request) to maintain the Borrower's identity as a separate legal entity from MFN or any of its Affiliates and to make it manifest to third parties that the Borrower is an entity with assets and liabilities distinct from those of MFN and each other Affiliate thereof. Without limiting the generality of the foregoing, the Borrower shall:
(a) The Borrower shall conduct its business solely correspondence in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concernedname, follow required limited liability company procedures and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG or any Affiliate thereof.maintain appropriate books and records;
(b) It except as set forth in the Borrower LLC Agreement, not permit any limitation on its authority to conduct its business and affairs in accordance with accepted limited liability company practice, and shall maintain records not authorize or suffer any Person other than its directors and books officers to act on its behalf with respect to matters (other than matters customarily delegated to others under powers of account separate from those of TPVG and any other Affiliate thereof.attorney) for which its representatives would customarily be responsible;
(c) It shall obtain proper authorization for subject to the terms of the Custodian Agreement, maintain or cause to be maintained by an agent of the Borrower under the Borrower's control physical possession of all action requiring such authorization.its books and records;
(d) It shall pay maintain capitalization adequate for the conduct of its own operating expenses and liabilities from its own funds.business;
(e) It will insure that the annual financial statements of TPVG shall disclose the effects of the transactions contemplated in the Transaction Documents in accordance with GAAP.
(f) It will maintain separate financial statements, showing account for and manage its assets and liabilities separate and apart separately from those of any other Person Person, including, without limitation, payment of all payroll and not have other administrative expenses and taxes from its own assets;
(f) maintain its assets listed on any financial statement separately from those of any other Person; provided, however that the Borrower’s assets may be included in a consolidated financial statement of TPVG provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of TPVG or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.;
(g) It will continuously maintain offices through which its business is conducted separate from those of MFN and any Affiliates of MFN (provided that, to the resolutions, agreements extent that MFN and other instruments any of the Borrower underlying the transactions described its Affiliates have offices in the Transaction Documents as official records same location, there shall be a fair and appropriate allocation of the Borrower.overhead costs and expenses among them, and each such entity shall bear its fair share of such expenses);
(h) It not commingle its funds with those of MFN or any Affiliate of MFN or any Affiliates of the Borrower except to the extent contemplated herein, or use its funds for other than the Borrower's uses; and
(i) ensure that any financial reports required of the Borrower shall maintain an arm’s-length relationship comply with TPVG and its Affiliates, GAAP and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or be issued separately from, but may be consolidated with, any reports prepared by any of its Affiliates.
(i) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shall, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jj) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not require TPVG to make additional capital contributions to the Borrower. It will insure that it and TPVG do not take any action contrary to the “Assumptions and Facts” section in the opinion of Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain non-consolidation matters.
Appears in 1 contract
Samples: Receivables Financing Agreement (MFN Financial Corp)
Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereofPerson.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(ed) It will insure shall ensure that the any annual financial statements of TPVG the Borrower and the Equityholder shall disclose the effects of the transactions contemplated in the Transaction Documents hereby in accordance with GAAP.
(fe) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s assets may be included in a consolidated financial statement of TPVG provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of TPVG or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being liable for available to pay the debts and obligations of TPVG or any of its Affiliatesother Person.
(if) It shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(jg) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which separate from any Affiliate is an account partyother person or entity, into which including any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction DocumentsAffiliate.
(lh) It To the extent required under GAAP, it shall insure ensure that any consolidated financial statements of TPVG including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holdersequityholders.
(mi) It shall not become involved in the day-to-day management of any other Person.
(nA) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documentsConstituent Documents, except in accordance therewith and with the prior written consent of the Administrative Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (iiB) its limited liability company agreement except in accordance therewithdivide or permit any division of itself.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(ggj) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG its Affiliates and from any other Person.
(hhk) It shall not commingle file its assets with assets own tax returns separate from those of any other Person, except to the extent that it is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under Applicable Law, and shall pay any taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) Without limiting any of the foregoing covenants in this Section 10.5, any financial statements that it prepares will show its assets and liabilities separate and apart from those of any other Person; and it shall not have its assets listed on any financial statement of any other Person; provided, that its assets may be included in a consolidated financial statement of its Affiliate so long as (i) appropriate notation shall be made on such consolidated financial statements (if any) to indicate its separateness from such Affiliate and to indicate that its assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on its own separate balance sheet.
(n) It shallshall not, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of the Borrowerrecords, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jjo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however however, that the foregoing shall not require TPVG its equityholders to make additional capital contributions contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(t) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not, to the Borrower. fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It will insure shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits, for the avoidance of doubt, the formation of REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Transaction Documents.
(y) It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and reasonably any overhead expenses that it are shared with any of its Affiliates, including for shared office space and TPVG do not for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder shall take any action contrary to the “Assumptions and Facts” section in the opinion of Freshfields Bruckhaus Xxxxxxxx Xxxxxxx, US LLP, dated the date hereof, relating to certain non-consolidation nonconsolidation, true sale and true participation matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior unanimous written consent of at least one Independent Director. The Constituent Documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Director; (b) the Borrower shall not, without the prior written consent of each Independent Director, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, each Independent Director shall consider only the interests of the Borrower, including its creditors; and (d) no Independent Director of the Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Director, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Director, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for an Independent Director. No resignation or removal of an Independent Director shall be effective until a successor Independent Director is appointed and has accepted his or her appointment. No Independent Director may be removed other than for Cause.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Silver Point Specialty Lending Fund)
Separate Existence. The Transferor shall at all times (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity extent the Transferor's office is located in the offices of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG Seller or any Affiliate thereof.
of the Seller, pay fair market rent for its executive office space located in the offices of the Seller or any Affiliate of the Seller, (b) It shall have at all times at least two members of its board of directors which are not and have never been employees, officers or directors of the Seller or any Affiliate of the Seller or of any creditor of the Seller or any Affiliate of the Seller and are persons who are familiar and have experience with asset securitization, (c) maintain the Transferor's books, financial statements, accounting records and books of account other corporate documents and records separate from those of TPVG and the Seller or any other Affiliate thereof.
(c) It shall obtain proper authorization for all action requiring such authorization.
entity and maintain separate accounts, (d) It not commingle the Transferor's assets with those of the Seller or any other entity, (e) act solely in its corporate name and through its own authorized officers and agents, (f) make investments directly or by brokers engaged and paid by the Transferor or its agents (provided that if any such agent is an Affiliate of the Transferor it shall be compensated at a fair market rate for its services), (g) separately manage the Transferor's liabilities from those of the Seller or any Affiliates of the Seller and pay its own operating expenses and liabilities liabilities, including all administrative expenses, from its own funds.
(e) It will insure that the annual financial statements of TPVG shall disclose the effects of the transactions contemplated in the Transaction Documents in accordance with GAAP.
(f) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s assets may be included in a consolidated financial statement of TPVG provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of TPVG or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.
(i) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawalsassets, except that the Collateral Manager Seller may pay the organizational expenses of the Transferor, (h) pay from the Transferor's assets all obligations and indebtedness of any kind incurred by the Transferor, and (i) take no actions which may mislead third parties as to the separate corporate identities and separate assets and liabilities of the Seller, the Initial Purchaser and the Equityholder may make deposits in such accounts if they receive funds Transferor. The Transferor shall abide by all corporate formalities, including the maintenance of current minute books, and the Borrower Transferor shall cause its financial statements to be prepared in accordance with generally accepted accounting principles in a manner that indicates the Transaction Documents.
separate existence of the Transferor and its assets and liabilities. The Transferor shall (li) It shall insure that pay all its liabilities, (ii) not assume the liabilities of the Seller or any consolidated financial statements Affiliate of TPVG have notes the Seller, (iii) not lend funds or extend credit to the effect that Seller except pursuant to the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
Receivables Purchase Agreements in connection with the purchase of Receivables thereunder and (miv) It shall not become involved in guarantee the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management liabilities of the Borrower, except that the Collateral Manager is permitted to manage the assets Seller or any Affiliates of the Borrower pursuant Seller. The officers and directors of the Transferor (as appropriate) shall make decisions with respect to Article VII.
(o) It the business and daily operations of the Transferor independent of and not dictated by any controlling entity. The Transferor shall not engage in transactions with any other Person other than those activities business not permitted by the Transaction Documentsits Certificate of Incorporation.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shall, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jj) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not require TPVG to make additional capital contributions to the Borrower. It will insure that it and TPVG do not take any action contrary to the “Assumptions and Facts” section in the opinion of Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain non-consolidation matters.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Metris Companies Inc)
Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereofPerson.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(ed) It will insure shall ensure that its annual financial statements and the annual financial statements of TPVG its Equityholder shall disclose the effects of the transactions contemplated in the Transaction Documents hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person, it shall not pledge its assets to secure the obligations of any other Person, it shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It will shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equityholder.
(i) It shall not (A) amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(j) It shall at all times hold itself out to the public and all other Persons as separate from its Affiliates and from any other Person.
(k) It shall file its own tax returns separate from those of any other Person, except to the extent that it is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under Applicable Law, and shall pay any taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s its assets may be included in a consolidated financial statement of TPVG provided that its Affiliate so long as (i) appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from TPVG such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of TPVG such Affiliate or any other Person and (ii) such assets shall also be listed on the Borrower’s its own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.
(i) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shallnot, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of the Borrowerrecords, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jjo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however however, that the foregoing shall not require TPVG its equityholder to make additional capital contributions contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(t) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not, to the Borrower. fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It will insure shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits, for the avoidance of doubt, the formation of REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Transaction Documents.
(y) It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and reasonably any overhead expenses that it are shared with any of its Affiliates, including for shared office space and TPVG do not for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder shall take any action contrary to the “Assumptions and Facts” section in the opinion or opinions of Xxxxxxxx Xxxxxxx, Xxxxxxxxx Xxxxxxxxxx (US) LLP, dated the date hereof, relating to certain non-consolidation nonconsolidation and true sale matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior unanimous written consent of the applicable Independent Manager. The Constituent Documents of the Borrower shall include the following provisions: (a) at all times there shall be, and the Borrower shall cause there to be, at least one Independent Manager; (b) the Borrower may not, without the prior written consent of the Independent Manager, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Manager shall consider only the interests of the Borrower, including its creditors; and (c) no Independent Manager of the Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Manager, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for an Independent Manager. No resignation or removal of an Independent Manager shall be effective until a successor Independent Manager is appointed and has accepted his or her appointment. No Independent Manager may be removed other than for Cause.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Stellus Private Credit BDC)
Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG UACC or any Affiliate thereofthereof (other than as expressly provided herein).
(b) It shall maintain corporate records and books of account separate from those of TPVG UACC and any other Affiliate thereof.
(c) It shall obtain proper authorization for all corporate action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(e) It will insure that the annual financial statements of TPVG UACC shall disclose the effects of the transactions contemplated in the Transaction Documents hereby in accordance with GAAP.
(f) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s assets may be included in a consolidated financial statement of TPVG provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of TPVG or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.
(g) It will continuously maintain the The resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents shall be continuously maintained by the Borrower as official records of the Borrower.
(hg) It shall maintain an arm’s-length relationship with TPVG UACC and its other Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG UACC or any of its other Affiliates.. [**CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN PORTIONS OF THIS DOCUMENT]
(ih) It shall keep its assets and liabilities separate from those of all other entitiesentities other than as permitted by the Transaction Documents.
(ji) It shall maintain the The books and records of the Borrower shall be maintained at the principal business office address designated herein for receipt of the Borrowernotices, unless the Borrower shall otherwise advise the parties hereto in writing.
(kj) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with as otherwise permitted by the Transaction Documents.
(lk) It shall insure that any consolidated financial statements of TPVG UACC have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(eel) It shall not amend, supplement or otherwise modify (i) its organizational organization documents, except in accordance therewith and with the prior written consent of the Administrative Agent Required Lenders (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement bylaws except in accordance therewith.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shall, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jj) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not require TPVG to make additional capital contributions to the Borrower. It will insure that it and TPVG do not take any action contrary to the “Assumptions and Facts” section in the opinion of Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain non-consolidation matters.
Appears in 1 contract
Samples: Receivables Financing Agreement (United Pan Am Financial Corp)
Separate Existence. Take all reasonable steps (aincluding, without limitation, all steps that the Program Agent or any Managing Agent may from time to time reasonably request) The to maintain the Borrower’s identity as a separate legal entity from each DT Entity and their Affiliates and to make it manifest to third parties that the Borrower is an entity with assets and liabilities distinct from those of the DT Entities and each other Affiliate thereof. Without limiting the generality of the foregoing, the Borrower shall conduct operate in such a manner and be constituted so that it would not be substantively consolidated in the bankruptcy trust estate of any DT Entity or Affiliate thereof, the separate existence of the Borrower and any DT Entity or Affiliate thereof would not be disregarded, and each of the following statements will be true and correct at all relevant times: ACTIVE 200146376v.2
(i) the Borrower maintains and shall maintain separate records, books of account and financial statements from those of DTAC and its Affiliates;
(ii) except to the extent permitted pursuant to the Facility Documents and the Master Agency Agreement, the Borrower does not and shall not commingle any of its assets or funds with those of DTAC and its Affiliates;
(iii) the Borrower maintains and shall maintain an office separate from that of any other entity and a separate board of directors with at least two (2) Independent Directors and observes all separate limited liability company formalities, and all decisions with respect to the Borrower’s business and daily operations have been and shall be independently made by the officers of the Borrower pursuant to resolutions of its board of directors;
(iv) other than contributions of capital, payment of dividends and return of capital, no transactions have been or will be entered into between the Borrower and DTAC or between the Borrower and any of Affiliates of DTAC except such transactions as are contemplated by this Agreement and the Facility Documents, or as permitted by the Borrower’s organizational documents, and the Borrower shall not enter into or permit to exist any transaction (including, without limitation, any purchase, lease or exchange of property or the rendering of any service) with any DT Entity or Affiliate thereof which is on terms that are less favorable to the Borrower than those that might be obtained in an arm’s length transaction at the time from Persons who are not Affiliates and which is not evidenced by or pursuant to a written agreement;
(v) except for such administration and collection and functions as the Servicer may perform on behalf of the Borrower, the Borrower acts solely in its own name and through its duly own authorized officers or and agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG or any Affiliate thereof.
(b) It shall maintain records does not and books of account separate from those of TPVG and any other Affiliate thereof.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(e) It will insure that the annual financial statements of TPVG shall disclose the effects of the transactions contemplated in the Transaction Documents in accordance with GAAP.
(f) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s assets may be included in a consolidated financial statement of TPVG provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of TPVG or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.
(i) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of DTAC or any other Person in any capacity.;
(tvi) It shall not act except for any funds received from DTAC or its members as agent of TPVG a capital contribution or as otherwise permitted in this Agreement or any other Person nor permit TPVG Facility Document, the Borrower shall not accept for its own account funds from DTAC or its Affiliates; and the Borrower shall not allow DTAC or its Affiliates otherwise to supply funds to, or guarantee any other Person to act as its agentobligation of, except to the limited extent permitted under the Transaction Documents.Borrower;
(uvii) It the Borrower shall correct not guarantee, or otherwise become liable with respect to, any known misunderstanding regarding obligation of DTAC or its separate identity from TPVG or any other Person.Affiliates;
(vviii) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons under the Borrower’s own name as a legal entity separate and distinct from TPVG DTAC and from any other Person.its Affiliates, and not hold itself out as a “division” of DTAC or its Affiliates;
(hhix) It the Borrower shall at all times maintain all of its liabilities and tangible and intangible assets, separate and readily identifiable, from those of DTAC and each and every Affiliate of DTAC or any Affiliate of such Affiliate;
(x) the Borrower is a special purpose company and has not engaged, and does not presently engage and shall not commingle its assets with assets of engage, in any activity other Person.
(ii) It shall, except for capital contributions or capital distributions permitted under than the terms and conditions of activities undertaken pursuant to this Agreement and the Facility Documents and activities ancillary or incident thereto and transactions permitted pursuant to its organizational documents, and has no indebtedness other than as created by, or set forth in, this Agreement or the Facility Documents;
(xi) the Borrower does not have any subsidiaries; ACTIVE 200146376v.2
(xii) the Borrower has complied in all material respects with all applicable laws, rules, regulations, and orders with respect to it, its business and properties;
(xiii) all of the issued and outstanding membership interests of the Borrower are owned by DTAC, and all distributions by Borrower to DTAC shall be properly reflected as distributions on the books and records of DTAC;
(xiv) the execution and delivery of this Agreement and the Facility Documents and the consummation of the transactions contemplated hereby and thereby were not made in contemplation of the insolvency of the Borrower or after the commission of any act of insolvency by the Borrower. The Borrower does not believe, nor does it have any reasonable cause to believe, that it cannot perform its covenants contained in this Agreement and the Facility Documents. The transactions contemplated by this Agreement and the Facility Documents are being consummated by the Borrower in furtherance of its ordinary business purposes, with no intent to hinder, delay or defraud any of its present or future creditors and with no view to preferring one creditor over another or to preventing the application of the Borrower’s assets in the manner required by applicable law or regulations. The consideration received by the Borrower as set forth herein is fair consideration having value reasonably equivalent to or in excess of the value of the Pledged Contracts and the performance of the Borrower’s obligations hereunder;
(xv) neither on the date of the transactions contemplated by this Agreement and the Facility Documents nor immediately before or after such transactions, nor as a result of the transactions, will the Borrower:
(A) be insolvent such that the sum of its debts is greater than all of its respective property, at a fair valuation in the normal course of its business operations;
(B) be engaged in or about to engage in business or a transaction for which any property remaining with the Borrower will be an unreasonably small capital or the remaining assets of the Borrower will be unreasonably small in relation to its respective business or the transaction; or
(C) have intended to incur, or believed it would incur, debts that would be beyond its respective ability to pay as such debts mature or become due. The Borrower’s assets and cash flow enable it to meet its present obligations in the ordinary course of business as they become due.
(xvi) both immediately before and after the transactions contemplated by this Agreement and the Facility Documents (y) the present fair salable value of the Borrower’s assets in the normal course of its business operations was or will be in excess of the amount that will be required to pay its probable liabilities as they then exist and as they become absolute and matured; and (z) the sum of the Borrower’s assets was and will be greater than the sum of its debts, valuing its assets at a fair salable value. This Agreement and the Facility Documents reflect bona fide transactions for legitimate business purposes;
(xvii) the Borrower (x) is not in violation of any laws, ordinances, governmental rules or regulations to which it is subject; (y) has not failed to obtain any licenses, permits, franchises or other governmental authorizations necessary to the ownership of its property or to the conduct of its business; and (z) is not in violation in any material respect of any term of any agreement, charter, bylaw or instrument to which it is a party or by which it may be bound and, in each case, ACTIVE 200146376v.2 such violation or failure to obtain would have a material adverse effect on the business or condition (financial or otherwise) of the Borrower;
(xviii) all Tax returns or extensions required to have been filed by the Borrower in any jurisdiction have been filed, and all Taxes, assessments, fees and other governmental charges upon the Borrower, not enter into or upon any transaction with an Affiliate of the respective properties, income or franchises of the Borrower, shown to be due and payable on such returns have been, or will be, paid when due. All such Tax returns are true and correct and the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties has no knowledge of any proposed additional Tax assessment against it in an arm’s-length transaction.any material amount nor of any basis therefor;
(jjxix) It the Borrower has no employees or “employee pension benefit plans” as such term is defined in Section 3 of ERISA; and
(xx) the Borrower shall maintain adequate capital take all other actions reasonably necessary on its part to operate its business and perform its obligations under the Facility Documents in light a manner consistent with the factual assumptions described in the legal opinions with respect to nonconsolidation and true sale matters of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not require TPVG to make additional capital contributions Snell& Xxxxxx L.L.P. delivered to the Borrower. It will insure that it Program Agent and TPVG do not take any action contrary to the “Assumptions and Facts” section Managing Agents in connection with the opinion of Xxxxxxxx Xxxxxxx, LLP, dated Purchase Agreement on or about the date hereof, relating to certain non-consolidation mattershereto.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Drivetime Automotive Group Inc)
Separate Existence. (a) The Borrower Such Loan Party shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower such Loan Party are available to pay the creditors of TPVG any of its equityholders or any Affiliate thereofthereof (it being understood that the assets of the Securitization Subsidiaries shall be pledged to secure the obligations of the Borrower).
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereofPerson, except to the extent that such Loan Party’s financial and operating results are consolidated with those of the Equityholder in consolidated financial statements or to the extent any Securitization Subsidiary’s financial and operating results are consolidated with those of a Loan Party.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own fundsfunds (other than in connection with administrative and other expenses owed by Securitization Subsidiaries, which may be paid by the Borrower); provided that, the Servicer may from time to time advance expenses of the Borrower for which the Servicer is later reimbursed pursuant to the priority of payments set forth in Article VIII.
(ed) It will insure shall ensure that the annual financial statements of TPVG the Borrower and the Equityholder shall disclose the effects of the transactions contemplated in the Transaction Documents hereby in accordance with GAAP.
(fe) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s assets may be included in a consolidated financial statement of TPVG provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of TPVG or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being liable for available to pay the debts and obligations of TPVG or any of its Affiliatesother Person.
(if) It shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person (other than any Securitization Subsidiary).
(jg) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which separate from any Affiliate is an account partyother person or entityPerson, into which including any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction DocumentsAffiliate.
(lh) It To the extent required under GAAP, it shall insure ensure that any consolidated financial statements of TPVG including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holdersequityholders.
(mi) It shall not become involved in the day-to-day management of any other Person.
(nA) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documentsConstituent Documents, except in accordance therewith and and, other than in connection with entering into the Transaction Documents, with the prior written consent of the Administrative Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned; provided that, the Facility Agent’s prior written consent in its sole discretion shall be required with respect to any amendment amending the definition of “Cause”, “Independent Manager” or “Material Action”) or (iiB) its limited liability company agreement except in accordance therewithdivide or permit any division of itself.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shall, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jj) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not require TPVG to make additional capital contributions to the Borrower. It will insure that it and TPVG do not take any action contrary to the “Assumptions and Facts” section in the opinion of Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain non-consolidation matters.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.)
Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG TPVC or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of TPVG TPVC and any other Affiliate thereof.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(e) It will insure that the annual financial statements of TPVG TPVC shall disclose the effects of the transactions contemplated in the Transaction Documents in accordance with GAAP.
(f) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however however, that the Borrower’s assets may be included in a consolidated financial statement of TPVG TPVC provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from TPVG TPVC and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of TPVG TPVC or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG TPVC and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG TPVC or any of its Affiliates.
(i) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG TPVC have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG the Equityholder to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower company under the laws of the State of DelawareMaryland.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG Equityholder or any other Person nor permit TPVG Equityholder or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG the Equityholder or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG the Equityholder or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG the Equityholder and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise managing each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities Indebtedness except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware the laws of the State of Maryland which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not (A) amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewiththerewith or (B) divide or permit any division of itself.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG the Equityholder and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shall, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jj) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however however, that the foregoing shall not require TPVG the Equityholder to make additional capital contributions to the Borrower. It will insure that it and TPVG the Equityholder do not take any action contrary to the “Assumptions and Facts” section in the opinion of Xxxxxxxx Xxxxxxx, LLPOtterbourg P.C., dated the date hereof, relating to certain non-consolidation nonconsolidation matters.
Appears in 1 contract
Samples: Receivables Financing Agreement (TriplePoint Private Venture Credit Inc.)
Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereofPerson.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(ed) It will insure that the annual financial statements of TPVG shall disclose the effects of the transactions contemplated in the Transaction Documents in accordance with GAAP.
(f) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s assets may be included in a consolidated financial statement of TPVG provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of TPVG or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being liable for available to pay the debts and obligations of TPVG or any of its Affiliatesother Person.
(ie) It shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(jf) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which separate from any Affiliate is an account partyother person or entity, into which including any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction DocumentsAffiliate.
(lg) It To the extent required under GAAP, it shall insure ensure that any consolidated financial statements of TPVG including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(mh) It shall not become involved in the day-to-day management of any other Person.
(nA) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documentsdocuments (as defined therein), except in accordance therewith and with the prior written consent of the Administrative Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (iiB) its limited liability company agreement except in accordance therewithdivide or permit any division of itself.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(ggi) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG its member and from any other PersonPerson (other than, if applicable, for U.S. federal income tax purposes).
(hhj) It shall not commingle file its assets with assets own Tax returns separate from those of any other Person.
(ii) It shall, if and to the extent required to file tax returns under Applicable Law, except to the extent that it is treated as a “disregarded entity” for capital contributions tax purposes and is not required to file Tax returns under Applicable Law. such equity interests; provided that so long as (x) no Event of Default or capital distributions permitted under Unmatured Event of Default shall have occurred and be continuing, (y) the terms Waiver Period shall have ended and conditions (z) the Portfolio LTV is equal to or less than 65.0%, the Borrower may make a distribution of this Agreement and properly reflected (A) amounts paid to it pursuant to Section 8.3(a) on the books applicable Distribution Date and records (B) the proceeds of any Advance on the applicable Advance Date, but only if such Advance is made in respect of an Eligible Collateral Obligation acquired by such Borrower on such Advance Date and none of the Borrower, not enter into any transaction with an Affiliate proceeds from such Advance are needed to settle the acquisition of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transactionsuch Eligible Collateral Obligation.
(jj) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not require TPVG to make additional capital contributions to the Borrower. It will insure that it and TPVG do not take any action contrary to the “Assumptions and Facts” section in the opinion of Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain non-consolidation matters.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Oaktree Specialty Lending Corp)
Separate Existence. (a) i. The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG Drive or any Affiliate thereofthereof (other than as expressly provided herein).
(b) It ii. The Borrower shall maintain records and books of account separate from those of TPVG Drive and any other Affiliate thereof.
(c) It iii. The Borrower shall obtain proper authorization for all action requiring such authorization.
(d) It iv. The Borrower shall pay its own operating expenses and liabilities from its own funds.
(e) It will insure that the v. The annual financial statements of TPVG Drive shall disclose the effects of the transactions contemplated in the Transaction Documents hereby in accordance with GAAPgenerally accepted accounting principles.
(f) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s assets may be included in a consolidated financial statement of TPVG provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of TPVG or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.
(g) It will continuously maintain the vi. The resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents shall be continuously maintained by the Borrower as official records of the Borrower.
(h) It vii. The Borrower shall maintain an arm’sarm's-length relationship with TPVG Drive and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG Drive or any of its Affiliates.
(i) It viii. The Borrower shall keep its assets and liabilities separate from those of all other entitiesentities other than as permitted by the Transaction Documents.
(j) It shall maintain the ix. The books and records of the Borrower shall be maintained at the principal business office address designated herein for receipt of the Borrowernotices, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It x. The Borrower shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with as otherwise permitted by the Transaction Documents.
(l) It xi. The Borrower shall insure that any consolidated financial statements of TPVG have Drive has notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the xii. The Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documentspartnership agreement, except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith).
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shall, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jj) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not require TPVG to make additional capital contributions to the Borrower. It will insure that it and TPVG do not take any action contrary to the “Assumptions and Facts” section in the opinion of Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain non-consolidation matters.
Appears in 1 contract
Samples: Receivables Financing Agreement (Firstcity Financial Corp)
Separate Existence. (a) The Borrower Seller shall conduct its business solely be operated in its own name through its duly authorized officers or agents so as not to mislead others as to such a manner that the identity separate corporate existence of the entity with which such persons are concerned, Seller and shall use its best efforts to avoid the appearance that it is conducting business on behalf Motor Coach Entities would not be disregarded in the event of any Affiliate thereof a bankruptcy or that the assets insolvency of the Borrower are available to pay the creditors of TPVG Seller or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereof.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(e) It will insure that Motor Coach Entity, and, without limiting the annual financial statements of TPVG shall disclose the effects of the transactions contemplated in the Transaction Documents in accordance with GAAP.
(f) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s assets may be included in a consolidated financial statement of TPVG provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of TPVG or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.foregoing:
(i) It the Seller shall keep at all times be a limited purpose corporation whose activities are restricted as set forth in its assets and liabilities separate from those certificate or articles of all other entities.incorporation;
(jii) It no Motor Coach Entity shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become be involved in the day-to-day management of the Borrower, Seller (except that to the Collateral Manager is permitted to manage extent expressly contemplated by this Agreement or any other Related Document);
(iii) other than the assets sale of the Borrower Receivables and Leased Vehicles pursuant to Article VII.
(o) It this Agreement and other actions permitted under this Agreement, the Seller shall not engage in any intercorporate transactions with any other Person other than those activities permitted by the Transaction DocumentsMotor Coach Entity.
(piv) It the Seller shall maintain separate corporate records and books of account from each Motor Coach Entity, hold regular corporate meetings and otherwise observe all corporate formalities required and have separate office space from each Motor Coach Entity, if any;
(v) the financial statements and books and records of a limited liability borrower under Motor Coach and any other entity whose financial statements are consolidates with the laws Seller prepared after the Initial Closing Date shall reflect the separate corporate existence of the State of Delaware.Seller;
(qvi) It the Seller shall allocate not act as agent for any Motor Coach Entity and charge fairly and reasonably any common employee or overhead shared with Affiliates.shall hold itself out to the public as a corporation separate from each such Motor Coach Entity;
(rvii) It the Seller shall maintain its assets separately from the assets of any Motor Coach Entity (including through the maintenance of separate bank accounts and except for any Records to the extent necessary for the servicing of the Receivables); the Seller's funds and assets, and records relating thereto, shall not assumebe commingled with those of any Motor Coach Entity; and the separate creditors of the Seller will be entitled to be satisfied out of the Seller's assets prior to any value in the Seller becoming available to the Seller's equity holders;
(viii) except as expressly contemplated under this Agreement and the Related Documents and those associated with the creation and organization of the Seller and the preparation of this Agreement and the Related Documents, no Motor Coach Entity shall (A) pay the Seller's expenses; (B) guarantee the Seller's obligations, or guarantee any other Person’s obligations or (C) advance funds to any other Person the Seller for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.otherwise; and
(six) It all business correspondence of the Seller and other communications shall not act as an agent of any other Person be conducted in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agentthe Seller's own name, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from on its own funds, stationery and maintain through a sufficient number of employees in light of its contemplated business operationsseparately-listed telephone number.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shall, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jj) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not require TPVG to make additional capital contributions to the Borrower. It will insure that it and TPVG do not take any action contrary to the “Assumptions and Facts” section in the opinion of Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain non-consolidation matters.
Appears in 1 contract
Samples: Receivables Sale Agreement (Motor Coach Industries International Inc)
Separate Existence. (a) The Borrower Such Loan Party shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower such Loan Party are available to pay the creditors of TPVG any of its equityholders or any Affiliate thereofthereof (it being understood that the assets of the Securitization Subsidiaries shall be pledged to secure the obligations of the Borrower).
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereofPerson, except to the extent that such Loan Party’s financial and operating results are consolidated with those of the Equityholder in consolidated financial statements or to the extent any Securitization Subsidiary’s financial and operating results are consolidated with those of a Loan Party.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own fundsfunds (other than in connection with administrative and other expenses owed by Securitization Subsidiaries, which may be paid by the Borrower).
(ed) It will insure shall ensure that the annual financial statements of TPVG the Borrower and the Equityholder shall disclose the effects of the transactions contemplated in the Transaction Documents hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It will shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person (other than any Securitization Subsidiary).
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equityholders.
(i) It shall not (A) amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(j) It shall at all times hold itself out to the public and all other Persons as separate from its Affiliates and from any other Person.
(k) It shall file its own tax returns separate from those of any other Person, except to the extent that it is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under Applicable Law, and shall pay any taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s its assets may be included in a consolidated financial statement of TPVG provided that (i) the Equityholder or to the extent any Securitization Subsidiary’s financial and operating results are consolidated with those of a Loan Party so long as appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from TPVG such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of TPVG such Affiliate or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.
(i) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shallnot, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of the Borrowerand as otherwise permitted pursuant to Section 9.34, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jjo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilitiesliabilities (it being understood that this covenant shall apply to the Borrower and the Securitization Subsidiaries on a combined basis); provided, however however, that the foregoing shall not require TPVG the Equityholder to make additional capital contributions contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(t) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person (other than the Securitization Subsidiaries), except that it may invest in those investments permitted under the Transaction Documents.
(u) It shall not, to the Borrower. fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It will insure shall not buy or hold evidence of indebtedness issued by any other Person (other than the Securitization Subsidiaries, and other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents, it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity (other than any Securitization Subsidiaries).
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Transaction Documents.
(y) It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and reasonably any overhead expenses that it are shared with any of its Affiliates, including for shared office space and TPVG do not for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder shall take any action contrary to the “Assumptions and Facts” section in the opinion or opinions of Xxxxxxxx Xxxxxxx, Dechert LLP, dated the date hereof, relating to certain non-consolidation nonconsolidation and true sale matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit any Loan Party to take any Material Action without the prior unanimous written consent of the Independent Member. The Constituent Documents of such Loan Party shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Member; provided that upon the death or incapacitation of the Independent Member, the Borrower shall replace such Independent Member with a new Independent Member within ten (10) Business Days of such death or incapacitation; (b) such Loan Party shall not, without the prior written consent of the Independent Member, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Member shall consider only the interests of such Loan Party, including its creditors; and (c) no Independent Member of the Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Member, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Member, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for an Independent Member. No resignation or removal of an Independent Member shall be effective until a successor Independent Member is appointed and has accepted his or her appointment. No Independent Member may be removed other than for Cause.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (GOLUB CAPITAL INVESTMENT Corp)
Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereofPerson.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(ed) It will insure shall ensure that the annual financial statements of TPVG the Borrower and the Equityholder shall disclose the effects of the transactions contemplated in the Transaction Documents hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It will shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to (i) Excluded Amounts and (ii) each Agent Account, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equityholders.
(i) It shall not (A) amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(j) It shall at all times hold itself out to the public and all other Persons as separate from its Affiliates and from any other Person.
(k) It shall file its own tax returns separate from those of any other Person, except to the extent that it is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under Applicable Law, and shall pay any taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s its assets may be included in a consolidated financial statement of TPVG provided that its Affiliate so long as (i) appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from TPVG such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of TPVG such Affiliate or any other Person and (ii) such assets shall also be listed on the Borrower’s its own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.
(i) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shallnot, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of the Borrowerrecords, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jjo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however however, that the foregoing shall not require TPVG its equityholders to make additional capital contributions contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(t) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not, to the Borrower. fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It will insure shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits the formation of REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Transaction Documents.
(y) It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and reasonably any overhead expenses that it are shared with any of its Affiliates, including for shared office space and TPVG do not for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder shall take any action contrary to the “Assumptions and Facts” section in the opinion or opinions of Xxxxxxxx Xxxxxxx, Eversheds Xxxxxxxxxx (US) LLP, dated the date hereof, relating to certain non-consolidation nonconsolidation and true sale matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior unanimous written consent of the Independent Manager. The Constituent Documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Manager; (b) the Borrower shall not, without the prior written consent of the Independent Manager, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Manager shall consider only the interests of the Borrower, including its creditors; and (d) the Independent Manager of the Borrower may not be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of the Independent Manager, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for the Independent Manager. No resignation or removal of the Independent Manager shall be effective until a successor Independent Manager is appointed and has accepted his or her appointment. The Independent Manager may not be removed other than for Cause.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (MSD Investment Corp.)
Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid USActive 58353885.2 the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereofPerson.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(ed) It will insure shall ensure that the annual financial statements of TPVG the Borrower and the Equityholder shall disclose the effects of the transactions contemplated in the Transaction Documents hereby in accordance with GAAP.
(fe) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s assets may be included in a consolidated financial statement of TPVG provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of TPVG or any other Person and (ii) such assets shall also be listed on the Borrower’s own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being liable for available to pay the debts and obligations of TPVG or any of its Affiliatesother Person.
(if) It shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to (i) Excluded Amounts and (ii) each Agent Account, it shall not commingle its assets with assets of any other Person.
(jg) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which separate from any Affiliate is an account partyother person or entity, into which including any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction DocumentsAffiliate.
(lh) It To the extent required under GAAP, it shall insure ensure that any consolidated financial statements of TPVG including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holdersequityholders.
(mi) It shall not become involved in the day-to-day management of any other Person.
(nA) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documentsConstituent Documents, except in accordance therewith and with the prior written consent of the Administrative Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (iiB) its limited liability company agreement except in accordance therewithdivide or permit any division of itself.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(ggj) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG its Affiliates and from any other Person.
(hhk) It shall not commingle file its assets with assets own tax returns separate from those of any other Person, except to the extent that it is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under Applicable Law, and shall pay any taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any USActive 58353885.2 financial statement of any other Person; provided, that its assets may be included in a consolidated financial statement of its Affiliate so long as (i) appropriate notation shall be made on such consolidated financial statements (if any) to indicate its separateness from such Affiliate and to indicate that its assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on its own separate balance sheet.
(n) It shallshall not, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of the Borrowerrecords, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jjo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however however, that the foregoing shall not require TPVG its equityholders to make additional capital contributions contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(t) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not, to the Borrowerfullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits the formation of REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Transaction Documents. -101- USActive 58353885.2
(y) It will insure shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and reasonably any overhead expenses that it are shared with any of its Affiliates, including for shared office space and TPVG do not for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder shall take any action contrary to the “Assumptions and Facts” section in the opinion or opinions of Xxxxxxxx Xxxxxxx, Eversheds Sutherland (US) LLP, dated the date hereof, relating to certain non-consolidation nonconsolidation and true sale matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior unanimous written consent of the Independent Manager. The Constituent Documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Manager; (b) the Borrower shall not, without the prior written consent of the Independent Manager, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Manager shall consider only the interests of the Borrower, including its creditors; and (d) the Independent Manager of the Borrower may not be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of the Independent Manager, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for the Independent Manager. No resignation or removal of the Independent Manager shall be effective until a successor Independent Manager is appointed and has accepted his or her appointment. The Independent Manager may not be removed other than for Cause.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (MSD Investment Corp.)
Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereofPerson.
(c) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(ed) It will insure shall ensure that the annual financial statements of TPVG the Borrower and the Equityholder shall disclose the effects of the transactions contemplated in the Transaction Documents hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It will shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equityholders.
(i) It shall not amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned).
(j) It shall at all times hold itself out to the public and all other Persons as separate from its Affiliates and from any other Person.
(k) It shall file its own tax returns separate from those of any other Person, except to the extent that it is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under Applicable Law, and shall pay any taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however that the Borrower’s its assets may be included in a consolidated financial statement of TPVG provided that its Affiliate so long as (i) appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from TPVG such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of TPVG such Affiliate or any other Person and (ii) such assets shall also be listed on the Borrower’s its own separate balance sheet.
(g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(h) It shall maintain an arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.
(i) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others.
(s) It shall not act as an agent of any other Person in any capacity.
(t) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity from TPVG or any other Person.
(v) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all times comply with the provisions of its limited liability company agreement.
(dd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not commingle its assets with assets of any other Person.
(ii) It shallnot, except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of the Borrowerrecords, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
(jjo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however however, that the foregoing shall not require TPVG its equityholders to make additional capital contributions contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(t) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not, to the Borrower. fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It will insure shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits the formation of REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Transaction Documents.
(y) It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and reasonably any overhead expenses that it are shared with any of its Affiliates, including for shared office space and TPVG do not for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder shall take any action contrary to the “Assumptions and Facts” section in the opinion or opinions of Xxxxxx Xxxxxxxx Xxxxxxx, Xxxxx & Xxxxxxxx LLP, dated the date hereof, relating to certain non-consolidation nonconsolidation and true sale matters.
(bb) Neither the Services Provider nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior written consent of the Independent Manager. The Constituent Documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Manager; (b) the Borrower shall not, without the prior written consent of the Independent Manager, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Manager shall consider only the interests of the Borrower, including its creditors; and (d) no Independent Manager of the Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Manager, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for an Independent Manager. No resignation or removal of an Independent Manager shall be effective until a successor Independent Manager is appointed and has accepted his or her appointment. No Independent Manager may be removed other than for Cause.
(cc) It shall not divide or permit any division of the Borrower.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Owl Rock Capital Corp)
