Separate Existence. Borrower and the General Partner shall each (i) maintain their books and records and bank accounts separate from any other person or entity (except that, for accounting and reporting purposes, the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) may be included in the consolidated financial statements of Host Marriott in accordance with generally accepted accounting principles); (ii) maintain an arm's length relationship with their partners, Affiliates and any other party furnishing services to either of them; (iii) maintain its books, records, resolutions and agreements as official records; (iv) conduct their business in their own name and through their own authorized officers and agents (except that all of the Properties are operated and are expected to continue to be operated under the name "Courtyard by Marriott," which is a trademark of MII); (v) prepare and maintain their financial statements, accounting records and other corporation or partnership documents separate from those of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); (vi) pay their own liabilities out of their own funds and other assets; (vii) observe all partnership or corporate formalities, as applicable, necessary to maintain their identities as entities separate and distinct from one another and from Host Marriott and all other Affiliates; (viii) participate in the fair and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods or services provided to multiple entities; (ix) use its own stationery, invoices and checks (except when acting in a representative capacity); (x) hold and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); and (xi) hold its assets in its own name.
Appears in 1 contract
Samples: Loan Agreement (Courtyard by Marriott Limited Partnership)
Separate Existence. Borrower Seller is operated in such a manner that it would not be substantively consolidated in the trust estate of any Affiliate, such that the separate existence of Seller and Affiliate would be disregarded, in the event of a bankruptcy or insolvency of Affiliate, and in such regard:
(A) Seller is a corporation whose activities are restricted in its certificate of incorporation, a true and complete copy of which has been delivered to Trustee and Bond Insurer pursuant to the Purchase Agreement and such document has not been amended since the date of such delivery;
(B) no Affiliate of Seller is involved in the day-to-day management of the Seller;
(C) other than the activities undertaken pursuant to this Agreement and the General Partner shall Equipment and Lease Purchase Agreement, Seller engages in no transactions with any Affiliate;
(D) Seller maintains separate corporate records and books of account from each Affiliate and otherwise observes corporate formalities and has a separate business office for each Affiliate, including Rockford;
(iE) maintain their the financial statements and books and records and bank accounts of each of its Affiliates prepared after the Initial Closing Date will reflect the separate existence of Seller;
(F) Seller maintains its assets separately from the assets of any other person or entity Affiliate (except thatincluding through the maintenance of a separate bank account), for accounting and reporting purposesSeller's funds and assets, the General Partner (andand records relating thereto, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) may be included in the consolidated financial statements of Host Marriott in accordance with generally accepted accounting principles); (ii) maintain an arm's length relationship with their partners, Affiliates and any other party furnishing services to either of them; (iii) maintain its books, records, resolutions and agreements as official records; (iv) conduct their business in their own name and through their own authorized officers and agents (except that all of the Properties are operated have not been and are expected to continue to be operated under the name "Courtyard by Marriott," which is a trademark of MII); (v) prepare and maintain their financial statements, accounting records and other corporation or partnership documents separate from not commingled with those of any other Person Affiliate;
(G) no Affiliate (1) pays Seller's expenses, (2) guarantees Seller's obligations, or (3) advances funds to Seller for the payment of expenses or otherwise;
(H) no Affiliate acts as an agent of Seller in any capacity (except as Servicer hereunder) and Seller does not act as agent for inclusion any Affiliate, but instead presents itself to the public as a corporation separate and apart from each of the General Partner (andits other Affiliates, if Host Marriott should acquire a sufficient direct or indirect ownership interest independently engaged in the Borrower business of having contributed to require consolidation under GAAPit by Rockford, and transferring undivided interests in, the Borrower) in consolidated financial statements of Host Marriott)Trust Assets; (vi) pay their own liabilities out of their own funds and other assets; (vii) observe all partnership or corporate formalities, as applicable, necessary to maintain their identities as entities separate and distinct from one another and from Host Marriott and all other Affiliates; (viii) participate in the fair and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods or services provided to multiple entities; (ix) use its own stationery, invoices and checks (except when acting in a representative capacity); (x) hold and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); and (xi) hold its assets in its own name.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Rockford Industries Inc)
Separate Existence. Borrower and the General Partner (a) It shall each at all times: (i) maintain their at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other person or entity Person (except thatalthough, for accounting in connection with certain advertising and reporting purposesmarketing, the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) it may be included in identified as a subsidiary of the consolidated financial statements of Host Marriott in accordance with generally accepted accounting principlesEquityholder); (ii) maintain an arm's length relationship with their partners, Affiliates and any other party furnishing services to either of them; (iii) maintain its books, records, resolutions and agreements as official records; (iv) conduct their business in their own name and through their own authorized officers and agents (except that all of the Properties are operated and are expected hold title to continue to be operated under the name "Courtyard by Marriott," which is a trademark of MII); (v) prepare and maintain their financial statements, accounting records and other corporation or partnership documents separate from those of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); (vi) pay their own liabilities out of their own funds and other assets; (vii) observe all partnership or corporate formalities, as applicable, necessary to maintain their identities as entities separate and distinct from one another and from Host Marriott and all other Affiliates; (viii) participate in the fair and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods or services provided to multiple entities; (ix) use its own stationery, invoices and checks (except when acting in a representative capacity); (x) hold and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); and (xi) hold its assets in its own name; (v) file its own 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 or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which it has established proper reserves on its books in accordance with Appropriate Accounting Principles; (vi) except as contemplated by the Transaction Documents, not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence (although, in connection with certain regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder); (viii) maintain separate financial statements except to the extent that its financial and operating results are consolidated with those of the Equityholder or its direct or indirect parent (if any) in consolidated financial statements; provided that all audited financial statements of the Equityholder that are consolidated to include the Borrower will contain detailed notes clearly stating that (x) all of the Borrower’s assets are owned by the Borrower and (y) the Borrower is a separate legal entity; (ix) pay its own liabilities only out of its own funds; (x) except for capital contributions or capital distributions permitted under the terms and conditions of the Transaction Documents and properly reflected on the books and records of the Borrower, maintain an arm’s length relationship with its Affiliates and the Equityholder and not enter into any transaction with an Affiliate except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions, liabilities and operations and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers or member(s) or managing member(s) to meet or act pursuant to written consent and keep minutes of such meetings and actions, in each case in accordance with Delaware limited liability company formalities and observe in all material respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates, except as otherwise permitted under the Transaction Documents; (xix) cause the managers, officers, agents and other representatives of it to act at all times with respect to it consistently and in furtherance of the foregoing and in its best interests; (xx) have an Independent Manager separate from that of the Equityholder and any other Person who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from it, shall immediately become the member of it in accordance with its organizational documents; (xxi) not divide or permit any division of the Borrower; and (xxii) pay the salaries of its own employees, if any.
(b) It shall not engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under its limited liability company agreement, the Transaction Documents or the preceding clause (a).
(c) It shall not (and shall not permit the Equityholder to) take any action that is materially contrary to the “Assumptions and Facts” section in the opinion of Lxxxxx & Wxxxxxx LLP, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Ares Strategic Income Fund)
Separate Existence. (a) The Borrower and the General Partner shall each at all times: (i) maintain their at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other person or entity Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except that, for accounting and reporting purposes, to the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to require consolidation file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets 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, that the Borrower) ’s assets may be included in the a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Host Marriott the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Seller each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) 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 pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (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 generally accepted accounting principlesits organizational documents.
(b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) maintain an arm's length relationship with their partners, Affiliates and any other party furnishing services fail to either of thembe solvent; (iii) maintain its booksrelease, recordssell, resolutions and agreements as official recordstransfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) conduct their business in their own name except for capital contributions or capital distributions permitted under the terms and through their own authorized officers conditions of this Agreement and agents (except that all properly reflected on the books and records of the Properties are operated and are expected Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to continue those available to be operated under the name "Courtyard by Marriott," which is a trademark of MII)unaffiliated parties in an arm’s-length transaction; (v) prepare and maintain their financial statements, accounting records and other corporation or partnership documents separate from those of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); (vi) pay their own liabilities out of their own funds and other assets; (vii) observe all partnership or corporate formalities, as applicable, necessary to maintain their identities as entities separate and distinct from one another and from Host Marriott and all other Affiliates; (viii) participate in the fair and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods or services provided to multiple entities; (ix) use its own stationery, invoices and checks (except when acting in a representative capacity); (x) hold and identify itself as a separate and distinct entity under its own name and not as a department or division or part of any other Person Person; or (except vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for inclusion the ownership or operation of these assets.
(c) The Borrower shall not (and shall not permit the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest Equityholder to) take any action contrary to the “Assumptions and Facts” section in the Borrower opinion of Dechert LLP, dated the date hereof, relating to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); and (xi) hold its assets in its own namecertain nonconsolidation matters.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (FS Investment Corp II)
Separate Existence. (a) The Borrower and the General Partner shall each at all times: (i) maintain their at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other person or entity Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except that, for accounting and reporting purposes, to the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to require consolidation file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets 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, that the Borrower) ’s assets may be included in the a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Host Marriott the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) 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 pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (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 generally accepted accounting principlesits organizational documents.
i. The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) maintain an arm's length relationship with their partners, Affiliates and any other party furnishing services fail to either of thembe solvent; (iii) maintain its booksrelease, recordssell, resolutions and agreements as official recordstransfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) conduct their business in their own name except for capital contributions or capital distributions permitted under the terms and through their own authorized officers conditions of this Agreement and agents (except that all properly reflected on the books and records of the Properties are operated and are expected Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to continue those available to be operated under the name "Courtyard by Marriott," which is a trademark of MII)unaffiliated parties in an arm’s-length transaction; (v) prepare and maintain their financial statements, accounting records and other corporation identify itself as a department or partnership documents separate from those division of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott)Person; (vi) pay their own liabilities out any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of their own funds and other these assets; , (vii) observe all partnership amend, supplement or corporate formalitiesotherwise modify its organizational documents, as applicableexcept in accordance therewith and, necessary in the case of provisions relating to maintain their identities as entities separate the special purpose of the Borrower and distinct from one another and from Host Marriott and all other Affiliates; the replacement of the Independent Manager, with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (viii) participate divide or permit any division of itself.
ii. The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the fair and reasonable allocation opinion of any and all overhead expenses and other common expenses for facilitiesDechert LLP, goods or services provided dated the date hereof, relating to multiple entities; (ix) use its own stationery, invoices and checks (except when acting in a representative capacity); (x) hold and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); and (xi) hold its assets in its own namecertain nonconsolidation matters.
Appears in 1 contract
Samples: Loan Agreement (FS KKR Capital Corp)
Separate Existence. (a) The Borrower and the General Partner shall each at all times: (i) maintain their at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other person or entity Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except that, for accounting and reporting purposes, to the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to require consolidation file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets 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, that the Borrower) ’s assets may be included in the a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Host Marriott the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) 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 pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (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 generally accepted accounting principlesits organizational documents.
(b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) maintain an arm's length relationship with their partners, Affiliates and any other party furnishing services fail to either of thembe solvent; (iii) maintain its booksrelease, recordssell, resolutions and agreements as official recordstransfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) conduct their business in their own name except for capital contributions or capital distributions permitted under the terms and through their own authorized officers conditions of this Agreement and agents (except that all properly reflected on the books and records of the Properties are operated and are expected Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to continue those available to be operated under the name "Courtyard by Marriott," which is a trademark of MII)unaffiliated parties in an arm’s-length transaction; (v) prepare and maintain their financial statements, accounting records and other corporation or partnership documents separate from those of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); (vi) pay their own liabilities out of their own funds and other assets; (vii) observe all partnership or corporate formalities, as applicable, necessary to maintain their identities as entities separate and distinct from one another and from Host Marriott and all other Affiliates; (viii) participate in the fair and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods or services provided to multiple entities; (ix) use its own stationery, invoices and checks (except when acting in a representative capacity); (x) hold and identify itself as a separate and distinct entity under its own name and not as a department or division or part of any other Person Person; or (except vi) own any asset or property other than the Collateral and the related assets and incidental personal property necessary for inclusion the ownership or operation of these assets.
(c) The Borrower shall not (and shall not permit the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest Equityholder to) take any action contrary to the “Assumptions and Facts” section in the Borrower opinion of Weil, Gotshal & Xxxxxx LLC, dated the date hereof, relating to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); and (xi) hold its assets in its own namecertain nonconsolidation matters.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Blackstone Private Credit Fund)
Separate Existence. Borrower and the General Partner (a) It shall each at all times: (i) maintain their at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other person or entity Person (except thatalthough, for accounting in connection with certain advertising and reporting purposesmarketing, the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) it may be included in identified as a subsidiary of the consolidated financial statements of Host Marriott in accordance with generally accepted accounting principlesEquityholder); (ii) maintain an arm's length relationship with their partners, Affiliates and any other party furnishing services to either of them; (iii) maintain its books, records, resolutions and agreements as official records; (iv) conduct their business in their own name and through their own authorized officers and agents (except that all of the Properties are operated and are expected hold title to continue to be operated under the name "Courtyard by Marriott," which is a trademark of MII); (v) prepare and maintain their financial statements, accounting records and other corporation or partnership documents separate from those of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); (vi) pay their own liabilities out of their own funds and other assets; (vii) observe all partnership or corporate formalities, as applicable, necessary to maintain their identities as entities separate and distinct from one another and from Host Marriott and all other Affiliates; (viii) participate in the fair and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods or services provided to multiple entities; (ix) use its own stationery, invoices and checks (except when acting in a representative capacity); (x) hold and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); and (xi) hold its assets in its own name; (v) file its own 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 or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which it has established proper reserves on its books in accordance with Appropriate Accounting Principles; (vi) except as contemplated by the Transaction Documents, not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence (although, in connection with certain regulatory filings, advertising and marketing, it may be identified as a subsidiary of the Equityholder); (viii) maintain separate financial statements except to the extent that its financial and operating results are consolidated with those of the Equityholder or its direct or indirect parent (if any) in consolidated financial statements; provided that all audited financial statements of the Equityholder that are consolidated to include the Borrower will contain detailed notes clearly stating that (x) all of the Borrower’s assets are owned by the Borrower and (y) the Borrower is a separate legal entity; (ix) pay its own liabilities only out of its own funds; (x) except for capital contributions or capital distributions permitted under the terms and conditions of the Transaction Documents and properly reflected on the books and records of the Borrower, maintain an arm’s length relationship with its Affiliates and the Equityholder and not enter into any transaction with an Affiliate except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions, liabilities and operations and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers or member(s) or managing member(s) to meet or act pursuant to written consent and keep minutes of such meetings and actions, in each case in accordance with Delaware limited liability company formalities and observe in all material respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates, except as otherwise permitted under the Transaction Documents; (xix) cause the managers, officers, agents and other representatives of it to act at all times with respect to it consistently and in furtherance of the foregoing and in its best interests; (xx) have an Independent Manager separate from that of the Equityholder and any other Person who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from it, shall immediately become the member of it in accordance with its organizational documents; (xxi) not divide or permit any division of the Borrower; and (xxii) pay the salaries of its own employees, if any.
(b) It shall not engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under its limited liability company agreement, the Transaction Documents or the preceding clause (a).
(c) It shall not (and shall not permit the Equityholder to) take any action that is materially contrary to the “Assumptions and Facts” section in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 1 contract
Samples: Loan and Servicing Agreement (AGL Private Credit Income Fund)
Separate Existence. (a) The Borrower and the General Partner shall each at all times: (i) maintain their at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other person or entity Person; (iv) [reserved]; (v) file its own Tax returns, except that, for accounting and reporting purposes, to the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to require consolidation file Taxes under GAAPApplicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with Appropriate Accounting Principles; (vi) not commingle its assets with assets 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, that the Borrower) ’s assets may be included in the a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Host Marriott the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) 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 pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, 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 generally accepted accounting principles)its organizational documents; and (xxi) it shall not divide or permit any division of the Borrower under Applicable Law.
(b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a) or otherwise pursuant to the Transaction Documents; (ii) maintain an arm's length relationship with their partners, Affiliates and any other party furnishing services fail to either of thembe solvent; (iii) maintain its booksrelease, recordssell, resolutions and agreements as official recordstransfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) conduct their business in their own name except for capital contributions or capital distributions permitted under the terms and through their own authorized officers conditions of this Agreement and agents (except that all properly reflected on the books and records of the Properties are operated and are expected Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to continue those available to be operated under the name "Courtyard by Marriott," which is a trademark of MII)unaffiliated parties in an arm’s-length transaction; (v) prepare and maintain their financial statements, accounting records and other corporation or partnership documents separate from those of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); (vi) pay their own liabilities out of their own funds and other assets; (vii) observe all partnership or corporate formalities, as applicable, necessary to maintain their identities as entities separate and distinct from one another and from Host Marriott and all other Affiliates; (viii) participate in the fair and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods or services provided to multiple entities; (ix) use its own stationery, invoices and checks (except when acting in a representative capacity); (x) hold and identify itself as a separate and distinct entity under its own name and not as a department or division or part of any other Person Person; or (except vi) own any asset or property other than the Collateral and the related assets and incidental personal property necessary for inclusion the ownership or operation of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); and (xi) hold its assets in its own namethese assets.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Blackstone Private Credit Fund)
Separate Existence. (a) The Borrower and the General Partner shall each at all times: (i) maintain their at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other person or entity Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except that, for accounting and reporting purposes, to the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to require consolidation file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets 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, that the Borrower) ’s assets may be included in the a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Host Marriott in accordance with generally accepted accounting principlesthe Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (iiix) pay its own liabilities only out of its own funds; (x) maintain an arm's ’s length relationship with their partners, Affiliates the Equityholder and any other party furnishing services to either each of them; (iii) maintain its books, records, resolutions and agreements as official records; (iv) conduct their business in their own name and through their own authorized officers and agents (except that all of the Properties are operated and are expected to continue to be operated under the name "Courtyard by Marriott," which is a trademark of MII); (v) prepare and maintain their financial statements, accounting records and other corporation or partnership documents separate from those of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); (vi) pay their own liabilities out of their own funds and other assets; (vii) observe all partnership or corporate formalities, as applicable, necessary to maintain their identities as entities separate and distinct from one another and from Host Marriott and all other Affiliates; (viiixi) participate in not hold out its credit or assets as being available to satisfy the fair obligations of others; (xii) allocate fairly and reasonable allocation of reasonably any and all overhead expenses and other common expenses that are shared with an Affiliate, including for facilities, goods or services provided to multiple entitiesshared office space; (ixxiii) use its own separate stationery, invoices and checks (except when acting in a representative capacity)checks; (xxiv) hold and identify itself except as a separate and distinct entity under expressly permitted by this Agreement, not pledge its own name and not assets as a division or part security for the obligations of any other Person Person; (except for inclusion xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the General Partner obligations or any securities of its Affiliates; (andxix) cause the managers, if Host Marriott should acquire a sufficient direct or indirect ownership interest in officers, agents and other representatives of the Borrower to require consolidation under GAAP, act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower) in consolidated financial statements of Host Marriott); and (xi) hold its assets in its own name.xx)
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Separate Existence. (a) The Borrower and the General Partner shall each at all times: (i) maintain their at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other person or entity Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except that, for accounting and reporting purposes, to the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to require consolidation file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets 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, that the Borrower) ’s assets may be included in the a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Host Marriott the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) 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 pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (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 generally accepted accounting principlesits organizational documents.
(b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) maintain an arm's length relationship with their partners, Affiliates and any other party furnishing services fail to either of thembe solvent; (iii) maintain its booksrelease, recordssell, resolutions and agreements as official recordstransfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) conduct their business in their own name except for capital contributions or capital distributions permitted under the terms and through their own authorized officers conditions of this Agreement and agents (except that all properly reflected on the books and records of the Properties are operated and are expected Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to continue those available to be operated under the name "Courtyard by Marriott," which is a trademark of MII)unaffiliated parties in an arm’s-length transaction; (v) prepare and maintain their financial statements, accounting records and other corporation identify itself as a department or partnership documents separate from those division of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott)Person; (vi) pay their own liabilities out any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of their own funds and other these assets; , (vii) observe all partnership amend, supplement or corporate formalitiesotherwise modify its organizational documents, as applicableexcept in accordance therewith and, necessary in the case of provisions relating to maintain their identities as entities separate the special purpose of the Borrower and distinct from one another and from Host Marriott and all other Affiliates; the replacement of the Independent Manager, with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (viii) participate divide or permit any division of itself.
(c) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the fair and reasonable allocation opinion of any and all overhead expenses and other common expenses for facilitiesDechert LLP, goods or services provided dated the date hereof, relating to multiple entities; (ix) use its own stationery, invoices and checks (except when acting in a representative capacity); (x) hold and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); and (xi) hold its assets in its own namecertain nonconsolidation matters.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Separate Existence. (a) The Borrower and the General Partner shall each at all times: (i) maintain their at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other person or entity Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except that, for accounting and reporting purposes, to the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to require consolidation file Taxes under GAAPApplicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with Appropriate Accounting Principles; (vi) not commingle its assets with assets 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, that the Borrower) ’s assets may be included in the a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Host Marriott the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) 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 pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (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 generally accepted accounting principlesits organizational documents.
(b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) maintain an arm's length relationship with their partners, Affiliates and any other party furnishing services fail to either of thembe solvent; (iii) maintain its booksrelease, recordssell, resolutions and agreements as official recordstransfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) conduct their business in their own name except for capital contributions or capital distributions permitted under the terms and through their own authorized officers conditions of this Agreement and agents (except that all properly reflected on the books and records of the Properties are operated and are expected Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to continue those available to be operated under the name "Courtyard by Marriott," which is a trademark of MII)unaffiliated parties in an arm’s-length transaction; (v) prepare and maintain their financial statements, accounting records and other corporation or partnership documents separate from those of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); (vi) pay their own liabilities out of their own funds and other assets; (vii) observe all partnership or corporate formalities, as applicable, necessary to maintain their identities as entities separate and distinct from one another and from Host Marriott and all other Affiliates; (viii) participate in the fair and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods or services provided to multiple entities; (ix) use its own stationery, invoices and checks (except when acting in a representative capacity); (x) hold and identify itself as a separate and distinct entity under its own name and not as a department or division or part of any other Person Person; or (except vi) own any asset or property other than the Collateral and the related assets and incidental personal property necessary for inclusion the ownership or operation of these assets.
(c) The Borrower shall not (and shall not permit the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest Equityholder to) take any action contrary to the “Assumptions and Facts” section in the Borrower opinion of Weil, Gotshal & Xxxxxx LLP, dated the date hereof, relating to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); and (xi) hold its assets in its own namecertain nonconsolidation matters.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Blackstone Private Credit Fund)
Separate Existence. (a) The Borrower and the General Partner shall each at all times: (i) maintain their at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other person or entity Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except that, for accounting and reporting purposes, to the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to require consolidation file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets 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, that the Borrower) ’s assets may be included in the a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Host Marriott in accordance with generally accepted accounting principlesthe Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (iiix) pay its own liabilities only out of its own funds; (x) maintain an arm's ’s length relationship with their partners, Affiliates the Equityholder and any other party furnishing services to either each of them; (iii) maintain its books, records, resolutions and agreements as official records; (iv) conduct their business in their own name and through their own authorized officers and agents (except that all of the Properties are operated and are expected to continue to be operated under the name "Courtyard by Marriott," which is a trademark of MII); (v) prepare and maintain their financial statements, accounting records and other corporation or partnership documents separate from those of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); (vi) pay their own liabilities out of their own funds and other assets; (vii) observe all partnership or corporate formalities, as applicable, necessary to maintain their identities as entities separate and distinct from one another and from Host Marriott and all other Affiliates; (viiixi) participate in not hold out its credit or assets as being available to satisfy the fair obligations of others; (xii) allocate fairly and reasonable allocation of reasonably any and all overhead expenses and other common expenses that are shared with an Affiliate, including for facilities, goods or services provided to multiple entitiesshared office space; (ixxiii) use its own separate stationery, invoices and checks (except when acting in a representative capacity)checks; (xxiv) hold and identify itself except as a separate and distinct entity under expressly permitted by this Agreement, not pledge its own name and not assets as a division or part security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its
(e) The Borrower shall notify the Facility Agent, each Agent and the Collateral Agent within five Business Days after a Responsible Officer of such Person shall obtain knowledge that the senior unsecured debt rating of a Hedge Counterparty has been withdrawn or reduced by any Rating Agency.
(except for inclusion f) The Borrower may at any time obtain a Replacement Hedging Agreement with the consent (in its sole discretion) of the General Partner Facility Agent.
(g) The Borrower shall not agree to any amendment to any Hedging Agreement without the consent (in its sole discretion) of the Facility Agent.
(h) The Borrower shall notify the Facility Agent, each Agent and the Collateral Agent after a Responsible Officer of the Borrower shall obtain actual knowledge of the transfer by the related Hedge Counterparty of any Hedging Agreement, or any interest or obligation thereunder.
(i) The Borrower, with the consent of the Facility Agent in its sole discretion, may sell all or a portion of the Hedging Agreements; provided, that no consent of the Facility Agent shall be required for the sale of all or a portion of any Hedging Agreement relating to Fixed Rate Collateral Obligations not counted as “excess” pursuant to clause (d) of the definition of “Excess Concentration Amount.” The Borrower shall have the duty of obtaining a fair market value price for the sale of any Hedging Agreement, notifying the Facility Agent, each Agent and the Collateral Agent of prospective purchasers and bids, and selecting the purchaser of such Hedging Agreement. The Borrower and, at the Borrower’s request, the Collateral Agent, upon receipt of the purchase price in the Collection Account shall, with the prior written consent of the Facility Agent, execute all documentation necessary to release the Lien of the Collateral Agent on such Hedging Agreement and proceeds thereof. Notwithstanding the foregoing, with respect to any Collateral Obligation, the Borrower may include in an Asset Approval Request provisions of Hedging Agreements applicable to such Collateral Obligation, and, if Host Marriott should acquire a sufficient direct or indirect ownership interest nothing to the contrary is included in the related Asset Approval NoticeRequest delivered to the Borrower to require consolidation under GAAPby the Facility Agent, the Borrower) provisions relating to Hedging Agreements in consolidated financial statements the Asset Approval Request shall control to the extent such provisions conflict with this Section 10.6. Notwithstanding anything to the contrary in this Section 10.6, the parties hereto agree that should the Borrower fail to observe or perform any of Host Marriott); and (xi) hold its assets in its own nameobligations under this Section 10.6 with respect to any Hedging Agreement, the sole result will be that the Collateral Obligation or Collateral Obligations that are the subject of such Hedging Agreement shall immediately cease to be Eligible Collateral Obligations for all purposes under this Agreement.
Appears in 1 contract
Samples: Omnibus Amendment to Transaction Documents (Blackstone Private Credit Fund)
Separate Existence. (a) The Borrower and the General Partner shall each at all times: (i) maintain their at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other person or entity Person; (iv) [reserved]; (v) file its own Tax returns, except that, for accounting and reporting purposes, to the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to require consolidation file Taxes under GAAPApplicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with Appropriate Accounting Principles; (vi) not commingle its assets with assets 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, that the Borrower) ’s assets may be included in the a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Host Marriott in accordance with generally accepted accounting principlesthe Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (iiix) pay its own liabilities only out of its own funds; (x) maintain an arm's ’s length relationship with their partners, Affiliates the Equityholder and any other party furnishing services to either each of them; (iii) maintain its books, records, resolutions and agreements as official records; (iv) conduct their business in their own name and through their own authorized officers and agents (except that all of the Properties are operated and are expected to continue to be operated under the name "Courtyard by Marriott," which is a trademark of MII); (v) prepare and maintain their financial statements, accounting records and other corporation or partnership documents separate from those of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); (vi) pay their own liabilities out of their own funds and other assets; (vii) observe all partnership or corporate formalities, as applicable, necessary to maintain their identities as entities separate and distinct from one another and from Host Marriott and all other Affiliates; (viiixi) participate in not hold out its credit or assets as being available to satisfy the fair obligations of others; (xii) allocate fairly and reasonable allocation of reasonably any and all overhead expenses and other common expenses that are shared with an Affiliate, including for facilities, goods or services provided to multiple entitiesshared office space; (ixxiii) use its own separate stationery, invoices and checks (except when acting in a representative capacity)checks; (xxiv) hold and identify itself except as a separate and distinct entity under expressly permitted by this Agreement, not pledge its own name and not assets as a division or part security for the obligations of any other Person Person; (except for inclusion xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of the General Partner (andits contemplated business purpose, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); transactions and (xi) hold liabilities and pay its assets in operating expenses and liabilities from its own name.assets; (xvii) cause its member(s) or managing member to act pursuant to written consent and keep minutes of meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers,
Appears in 1 contract
Samples: Loan and Servicing Agreement (Blue Owl Capital Corp III)
Separate Existence. Borrower and the General Partner shall each (i) maintain their books and records and bank accounts The Lessee has, since its formation, maintained ------------------ itself as an entity separate from any other person or entity (except that, for accounting and reporting purposes, the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAPparticular, the Borrowerhas: (i) may be included in the consolidated financial statements of Host Marriott in accordance with generally accepted accounting principles); (ii) maintain an arm's length relationship with their partners, Affiliates maintained books and any other party furnishing services to either of them; (iii) maintain its books, records, resolutions and agreements as official records; (iv) conduct their business in their own name and through their own authorized officers and agents (except that all of the Properties are operated and are expected to continue to be operated under the name "Courtyard by Marriott," which is a trademark of MII); (v) prepare and maintain their financial statements, accounting records and other corporation or partnership documents accounts separate from those of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott)Person; (viii) pay their own liabilities out of their own not commingled its assets or funds and other assets; (vii) observe all partnership or corporate formalities, as applicable, necessary to maintain their identities as entities separate and distinct from one another and from Host Marriott and all other Affiliates; (viii) participate in the fair and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods or services provided to multiple entities; (ix) use its own stationery, invoices and checks (except when acting in a representative capacity); (x) hold and identify itself as a separate and distinct entity under its own name and not as a division or part with those of any other Person Person; (except for inclusion iii) held all of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); and (xi) hold its assets in its own name; (iv) conducted its business in its own name; (iv) paid its liabilities out of its own funds; (v) observed all corporate formalities; (vi) maintained an arm's-length relationship with its Affiliates, if any; (vii) prepared and maintained financial statements separate from its Affiliates, if any, except as may have been required by applicable law; (viii) paid the salaries of its own employees and fees for its directors and officers from its own funds; (ix) not guaranteed or become obligated for the debts of any other entity, or held out its credit as being available to satisfy the obligations of others; (x) allocated and charged fairly and reasonably any overhead for shared office space; (xi) used separate stationery, invoices and checks, each bearing its own name; (xii) not pledged its assets for the benefit of any other entity nor made any loans or advances to any Person; (xiii) held itself out to creditors and the public as a legal entity separate from any other Person and corrected any known misunderstanding regarding such separate identity; (xiv) maintained adequate capital in light of its contemplated business purpose, transactions and liabilities; (xv) unless otherwise required by applicable law, filed its tax returns separately from those of any other Person; (xvi) not purchased or held evidence of indebtedness issued by any other Person; (xvii) not identified itself as a division of any other Person, nor acquired or held any subsidiary; (xviii) not acquired any securities of any Person; (xvix) not borrowed money or incurred indebtedness other than normal trade accounts payable and lease obligations in the normal course of its business nor granted consensual Liens on any of its property, except the Senior Loans; (xix) not filed a voluntary petition or otherwise initiated proceedings to become bankrupt or insolvent, or consented to the institution of bankruptcy or insolvency proceedings, or file a petition seeking or consenting to reorganization or relief as debtor under any applicable federal or state law relating to bankruptcy, insolvency, or other relief for debtors, or sought or consented to the appointment of any receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) or made any general assignment for the benefit of creditors of the Borrower, or admitted in writing the inability to pay its debts generally as they become due or declared or effected a moratorium on t debts or taken any action in furtherance of any such action; (xx) not merged or consolidated with any other Person; and (xxi) not pledged its assets for the benefit of any other Person.
Appears in 1 contract
Separate Existence. (a) The Borrower and the General Partner shall each at all times: (i) maintain their at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other person or entity Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except that, for accounting and reporting purposes, to the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to require consolidation file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets 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, that the Borrower) ’s assets may be included in the a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Host Marriott the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) 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 pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (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 generally accepted accounting principlesits organizational documents.
(a) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) maintain an arm's length relationship with their partners, Affiliates and any other party furnishing services fail to either of thembe solvent; (iii) maintain its booksrelease, recordssell, resolutions and agreements as official recordstransfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) conduct their business in their own name except for capital contributions or capital distributions permitted under the terms and through their own authorized officers conditions of this Agreement and agents (except that all properly reflected on the books and records of the Properties are operated and are expected Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to continue those available to be operated under the name "Courtyard by Marriott," which is a trademark of MII)unaffiliated parties in an arm’s-length transaction; (v) prepare and maintain their financial statements, accounting records and other corporation identify itself as a department or partnership documents separate from those division of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott)Person; (vi) pay their own liabilities out any asset or property other than the Collateral and the related assets and incidental personal property necessary for the ownership or operation of their own funds and other these assets; , (vii) observe all partnership amend, supplement or corporate formalitiesotherwise modify its organizational documents, as applicableexcept in accordance therewith and, necessary in the case of provisions relating to maintain their identities as entities separate the special purpose of the Borrower and distinct from one another and from Host Marriott and all other Affiliates; the replacement of the Independent Manager, with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (viii) participate divide or permit any division of itself.
(b) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the fair and reasonable allocation opinion of any and all overhead expenses and other common expenses for facilitiesDechert LLP, goods or services provided dated the date hereof, relating to multiple entities; (ix) use its own stationery, invoices and checks (except when acting in a representative capacity); (x) hold and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); and (xi) hold its assets in its own namecertain nonconsolidation matters.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Separate Existence. Borrower and the General Partner shall each Shall at all times: (i) maintain their at least one independent manager or director; (ii) maintain its own separate books and records and bank accounts separate from any other person or entity (except that, for accounting and reporting purposes, the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) may be included in the consolidated financial statements of Host Marriott in accordance with generally accepted accounting principles); (ii) maintain an arm's length relationship with their partners, Affiliates and any other party furnishing services to either of themaccounts; (iii) maintain its books, records, resolutions and agreements as official records[reserved]; (iv) conduct their business in their own name and through their own authorized officers and agents (except that all of the Properties are operated and are expected to continue to be operated under the name "Courtyard by Marriott," which is a trademark of MII)[reserved]; (v) prepare and maintain their financial statements, accounting records and other corporation or partnership documents separate from those of any other Person (except for inclusion of the General Partner (andfile its own Tax returns, if Host Marriott should acquire any, as may be required by Applicable Law, to the extent that the Company is (1) not part of a sufficient direct consolidated group filing a consolidated return or indirect ownership interest in the Borrower returns or (2) not treated as a division or “disregarded entity” for tax purposes, and pay any Taxes so required to require consolidation be paid under GAAP, the Borrower) in consolidated financial statements of Host Marriott)Applicable Law; (vi) pay their own liabilities out not commingle its assets with the assets of their own funds and any other assetsPerson; (vii) observe all partnership or corporate formalities, as applicable, necessary to maintain their identities as entities separate and distinct from one another and from Host Marriott and all other Affiliates[reserved]; (viii) participate maintain separate financial statements except to the extent that its financial and operating results are consolidated with those of the Parent in consolidated financial statements; provided that all audited financial statements of the fair Parent that are consolidated to include the Company will contain notes stating that (x) all of the Company’s assets are owned by the Company and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods or services provided to multiple entities(y) the Company is a separate legal entity; (ix) use pay its own stationery, invoices and checks (except when acting in a representative capacity)liabilities only out of its own funds; (x) not hold and identify itself out its credit or assets as a separate and distinct entity under being available to satisfy the obligations of others; (xi) [reserved]; (xii) [reserved]; (xiii) except as expressly permitted by this Agreement, not pledge its own name and not as a division or part assets to secure the obligations of any other Person Person; (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrowerxiv) in consolidated financial statements of Host Marriott)[reserved]; and (xixv) hold maintain adequate capital in light of its assets in contemplated business purpose, transactions and liabilities and (except as permitted by this Agreement, the Effective Date Letter and the other Credit Documents) pay its operating expenses and liabilities from its own name.assets;
Appears in 1 contract
Samples: Credit and Security Agreement (FS Global Credit Opportunities Fund)
Separate Existence. (a) The Borrower and the General Partner shall each at all times: (i) maintain their at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other person or entity Person; (iv) [reserved]; (v) file its own Tax returns, except that, for accounting and reporting purposes, to the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to require consolidation file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets 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, that the Borrower) ’s assets may be included in the a consolidated financial statement of its Affiliate if (A) appropriate notation shall be USActive 57084911.14 -98- made on such consolidated financial statements to indicate the separateness of Host Marriott the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) 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 pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its member or members to 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]; and (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 generally accepted accounting principles)its organizational documents.
(a) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a) or otherwise pursuant to the Transaction Documents; (ii) maintain an arm's length relationship with their partners, Affiliates and any other party furnishing services fail to either of thembe solvent; (iii) maintain its booksrelease, recordssell, resolutions and agreements as official recordstransfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) conduct their business in their own name except for capital contributions or capital distributions permitted under the terms and through their own authorized officers conditions of this Agreement and agents (except that all properly reflected on the books and records of the Properties are operated and are expected Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to continue those available to be operated under the name "Courtyard by Marriott," which is a trademark of MII)unaffiliated parties in an arm’s-length transaction; (v) prepare and maintain their financial statements, accounting records and other corporation or partnership documents separate from those of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); (vi) pay their own liabilities out of their own funds and other assets; (vii) observe all partnership or corporate formalities, as applicable, necessary to maintain their identities as entities separate and distinct from one another and from Host Marriott and all other Affiliates; (viii) participate in the fair and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods or services provided to multiple entities; (ix) use its own stationery, invoices and checks (except when acting in a representative capacity); (x) hold and identify itself as a separate and distinct entity under its own name and not as a department or division or part of any other Person Person; or (except vi) own any asset or property other than the Collateral and the related assets and incidental personal property necessary for inclusion the ownership or operation of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); and (xi) hold its assets in its own namethese assets.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Blackstone Private Credit Fund)
Separate Existence. The Borrower and the General Partner shall each at all times: (i) maintain their at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other person or entity Person; (iv) have a board of managers separate from that of any other Person[reserved]; (v) file its own Tax returns, except that, for accounting and reporting purposes, to the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to require consolidation file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets 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, that the Borrower) ’s assets may be included in the a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Host Marriott in accordance with generally accepted accounting principlesthe Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (iiix) pay its own liabilities only out of its own funds; (x) maintain an arm's ’s length relationship with their partners, Affiliates the USActive 31637433.4 -104- Equityholder and any other party furnishing services to either each of them; (iii) maintain its books, records, resolutions and agreements as official records; (iv) conduct their business in their own name and through their own authorized officers and agents (except that all of the Properties are operated and are expected to continue to be operated under the name "Courtyard by Marriott," which is a trademark of MII); (v) prepare and maintain their financial statements, accounting records and other corporation or partnership documents separate from those of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott); (vi) pay their own liabilities out of their own funds and other assets; (vii) observe all partnership or corporate formalities, as applicable, necessary to maintain their identities as entities separate and distinct from one another and from Host Marriott and all other Affiliates; (viiixi) participate in not hold out its credit or assets as being available to satisfy the fair obligations of others; (xii) allocate fairly and reasonable allocation of reasonably any and all overhead expenses and other common expenses that are shared with an Affiliate, including for facilities, goods or services provided to multiple entitiesshared office space; (ixxiii) use its own separate stationery, invoices and checks checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant tomember or members to keep minutes of all meetings and actions by written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower (except when acting in a representative capacityas otherwise permitted under the Transaction Documents); (xxix) hold and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated financial statements of Host Marriott)[reserved]; and (xixx) hold 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 assets in its own nameorganizational documents.
Appears in 1 contract
Samples: Omnibus Amendment to Transaction Documents (Blackstone Private Credit Fund)
Separate Existence. Borrower TCC shall maintain its separate corporate existence and the General Partner identity and shall each take all steps necessary to make it apparent to third parties that TCC is an entity with assets and liabilities distinct from those of TransCore or any Affiliate of TransCore. TCC shall therefore, at all times: (i) maintain promptly reimburse TransCore or any Affiliate of TransCore for all reasonable expenses paid or incurred by TransCore, any Affiliate or their books personnel for or on behalf of TCC, including appropriate allocations of(x) salaries and records benefits of those personnel performing services for TCC and bank accounts separate from any (y) office space, overhead, computing and other person or entity (except that, expenses attributable to services performed for accounting and reporting purposes, the General Partner (andTCC, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) may be included in the consolidated financial statements of Host Marriott in accordance with generally accepted accounting principles)any; (ii) maintain an armTCC's length relationship with their partners, Affiliates and any other party furnishing services to either of them; (iii) maintain its books, records, resolutions and agreements as official records; (iv) conduct their business in their own name and through their own authorized officers and agents (except that all of the Properties are operated and are expected to continue to be operated under the name "Courtyard by Marriott," which is a trademark of MII); (v) prepare and maintain their financial statements, accounting records and other corporation or partnership corporate documents and records separate from those of TransCore or any other Person entity; (except for inclusion iii) prepare any financial statements separately from those of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest TransCore and request that TransCore include certain footnotes in the Borrower to require consolidation under GAAP, the Borrower) in any consolidated financial statements issued by TransCore to the effect that TransCore contributed certain assets to TCC; (iv) maintain TCC's books of Host Marriott)account and payroll (if any) separate from those of TransCore or any Affiliate of TransCore; (v) act solely in its corporate name and through its own authorized officers and. agents, invoices and letterhead; (vi) separately manage TCC's liabilities from those of TransCore or any Affiliate of TransCore and pay their its own liabilities out of their liabilities, including all administrative expenses, from its own funds and other separate assets; (vii) observe all partnership or corporate formalities, hold itself out as applicable, necessary to maintain their identities as entities an entity; separate from TransCore and distinct from one another any Affiliate of TransCore 23 <PAGE> and from Host Marriott and all any other Affiliatesperson; (viii) participate in the fair not commingle its assets with those of TransCore, any Affiliate of TransCore or any other person; and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods or services provided to multiple entities; (ix) use not pledge its own stationery, invoices and checks (except when acting in a representative capacity); (x) hold and identify itself as a separate and distinct entity under its own name and not as a division or part assets for the benefit of any other Person (except for inclusion person or make loans or advances to any other person. TCC shall abide by all corporate formalities, including the maintenance of the General Partner (andcurrent minute books, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) in consolidated and shall cause any financial statements to be prepared in accordance with GAAP in a manner that indicates the separate existence of Host Marriott); TCC and (xi) hold its assets in its own nameand liabilities. Other than those liabilities associated with the issuance of Eligible Bonds, TCC shall not assume the liabilities of TransCore or any Affiliate of TransCore, and shall not guarantee the liabilities of TransCore or any Affiliate of TransCore. SECTION 14.
Appears in 1 contract
Samples: Irrevocable Funding, Warrant Purchase and Reimbursement Agreement
