Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit and Security Agreement in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. Accordingly, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable steps, including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, to maintain the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that: (i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 of the Credit and Security Agreement; (ii) the Seller shall maintain corporate records and books of account separate from those of the Buyer; (iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note that the assets of the Buyer, including the Transferred Assets, are not available to pay creditors of the Seller or any other Affiliate of the Seller; (iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records; (v) the Seller shall maintain an arm’s–length relationship with the Buyer and will not hold itself out as being liable for the debts of the Buyer; (vi) the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; and (vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer are available to pay the obligations and debts of the Seller.
Appears in 3 contracts
Samples: Sale, Contribution and Master Participation Agreement (Oxford Square Capital Corp.), Sale, Contribution and Master Participation Agreement (Oxford Square Capital Corp.), Sale, Contribution and Master Participation Agreement (TICC Capital Corp.)
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit and Security Agreement in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreementhereof, the Seller will take all reasonable steps, including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, to maintain the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller or any such other AffiliateAffiliate (except as otherwise required under GAAP or applicable tax law). Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 5.18 of the Credit and Security AgreementAgreement (provided, however, that the Seller does not hereby guaranty the solvency of the Buyer or agree to pay any of the Buyer’s obligations or liabilities);
(ii) the Seller shall maintain corporate records and books of account separate from those of the Buyer;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the Buyer, including including, without limitation, the Transferred AssetsCollateral, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–-length relationship with the Buyer and will not hold itself out as being liable for the debts of the Buyer;
(vi) except as otherwise permitted under the Credit Agreement, the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer or, other than by reason of owning equity interests of the Buyer; and, for any decisions or actions relating to the Buyer;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer are available to pay the obligations and debts of the Seller;
(viii) to the extent that the Seller services the Collateral and performs other services on the Buyer’s behalf, the Seller will clearly identify itself as an agent for the Buyer in the performance of such duties; provided, however, that the Seller will not be required to so identify itself when communicating with the Obligors not in its capacity as agent for the Buyer but rather in its capacity as agent for a group of lenders; and
(ix) the Seller shall take or refrain from taking, as applicable, each of the activities specified or assumed in the true sale and non-consolidation opinions of Dechert LLP delivered on the Warehouse Closing Date, upon which the conclusions expressed therein are based.
Appears in 3 contracts
Samples: Master Loan Sale and Contribution Agreement (AB Private Credit Investors Corp), Master Loan Sale and Contribution Agreement (AB Private Credit Investors Corp), Master Loan Sale and Contribution Agreement (AB Private Credit Investors Corp)
Separate Identity. The Seller acknowledges that the Collateral AgentBuyer, the Administrative Agent, the Lenders Trustee and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit and Security Agreement Indenture in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller(except as otherwise required under GAAP or applicable tax law). AccordinglyTherefore, from and after the date of execution and delivery of this Agreementhereof, the Seller will take all reasonable steps, including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, to maintain the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller (except as otherwise required under GAAP or any such other Affiliateapplicable tax law). Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 of the Credit and Security Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the Buyer;
(iiiii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the Buyer, including including, without limitation, the Transferred AssetsCollateral, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iviii) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(viv) except as otherwise expressly permitted or required by the Transaction Documents, the Seller shall maintain an arm’s–length relationship with the Buyer and Buyer;
(v) the Seller will not hold itself out as being liable for the debts of the Buyer;
(vi) except as otherwise permitted under the Transaction Documents, the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; and;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer are available to pay the obligations and debts of the Seller;
(viii) to the extent that the Seller performs any services on the Buyer’s behalf, the Seller will clearly identify itself as an agent for the Buyer in the performance of such duties; provided, however, that the Seller will not be required to so identify itself when communicating with the Obligors not in its capacity as agent for the Buyer but rather in its capacity as agent for a group of lenders; and
(ix) the Seller shall take or refrain from taking, as applicable, each of the activities specified or assumed in the true sale opinion of Dechert LLP delivered on the Closing Date, upon which the conclusions expressed therein are based.
Appears in 2 contracts
Samples: Loan Sale and Contribution Agreement (Monroe Capital Income Plus Corp), Loan Sale and Contribution Agreement (Monroe Capital Income Plus Corp)
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit and Security Agreement in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. Accordingly, from and after the date of execution and delivery of this Agreement, the Seller will Transferor shall take all reasonable steps, including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, actions required to maintain the BuyerTransferee’s identity status as a separate legal entity that is separate from entity, including (i) not holding the Seller and each other Affiliate of the Seller and to make it manifest Transferee out to third parties that the Buyer is as other than an entity with assets and liabilities distinct from those the Transferor and the Transferor’s subsidiaries, (ii) not holding itself out to be responsible for the indebtedness of the Seller and each Transferee or, other Affiliate thereof and not just a division than by reason of owning common membership interests in the Seller Transferee, for any decisions or any actions relating to the Transferee, (iii) taking such other Affiliateactions as are necessary on its part to ensure that all procedures required by its certificate of incorporation and by-laws or its certificate of formation and limited liability company agreement, as applicable, and the Transferee’s certificate of formation and limited liability company agreement are duly and validly taken, (iv) keeping correct and complete records and books of account and minutes and (v) not acting in any manner that could foreseeably mislead others with respect to the Transferee’s separate identity. Without limiting the generality of the foregoing and in In addition to the other covenants set forth hereinforegoing, the Seller agrees Transferor and the Transferee shall take such actions as shall be required in order that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 of the Credit and Security Agreement;
(ii) the Seller Transferor shall maintain corporate records and books of account separate from those of the BuyerTransferee;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note that the assets of the Buyer, including the Transferred Assets, are not available to pay creditors of the Seller or any other Affiliate of the Seller;
(ivii) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller Transferor as official records;
(viii) the Seller Transferor shall maintain an arm’s–-length relationship with the Buyer Transferee and will shall not hold itself out as being liable for the debts Indebtedness of the BuyerTransferee;
(viiv) the Seller Transferor shall keep its assets and its liabilities wholly separate from those of the BuyerTransferee;
(v) the Transferor shall not mislead third parties by conducting or appearing to conduct business on behalf of the Transferee or expressly or impliedly representing or suggesting that the Transferor is liable or responsible for the indebtedness of the Transferee or that the assets of the Transferor are available to pay the creditors of the Transferee;
(vi) the Transferor shall at all times limit its transactions with the Transferee only to those expressly permitted under this Agreement or under any Loan Document; and
(vii) the Seller will avoid the appearance, Transferor shall comply with (and promptly correct any known misperception of any cause to be true and correct) each of the Seller’s creditors, that facts and assumptions relating to the assets Transferor and the Transferee contained in the “no substantive consolidation” opinion of White & Case LLC delivered on the Buyer are available to pay the obligations and debts of the SellerClosing Date.
Appears in 2 contracts
Samples: Sale and Contribution Agreement, Sale and Contribution Agreement (CION Investment Corp)
Separate Identity. The Seller acknowledges that the Collateral Borrower, the Agent, the Administrative AgentTrustee, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Loan and Servicing Agreement and the Credit and Security Agreement other Transaction Documents in reliance upon the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the BuyerBorrower, the Collateral Agent or and the Administrative Agent Trustee may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than for tax purposes) and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer Purchaser is at all times in compliance with the criteria and the restrictions set forth in Section 5.05 9(j) of the Credit and Security Agreementlimited liability company operating agreement of the Purchaser;
(ii) the Seller shall maintain corporate records and books of account separate from those of the BuyerPurchaser;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the BuyerPurchaser, including including, without limitation, the Transferred AssetsSale Portfolio, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–—length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; andPurchaser;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer Purchaser are available to pay the obligations and debts of the Seller; and
(viii) to the extent that the Seller services the Loan Assets and performs other services on the Purchaser’s behalf, the Seller will clearly identify itself as an agent for the Purchaser in the performance of such duties.
Appears in 2 contracts
Samples: Omnibus Amendment (Ares Capital Corp), Purchase and Sale Agreement (Ares Capital Corp)
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative AgentTrustee, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Loan and Servicing Agreement and the Credit and Security Agreement other Transaction Documents in reliance upon the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the Buyer, Agent and the Collateral Agent or the Administrative Agent Trustee may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than for tax purposes) and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer Purchaser is at all times in compliance with the criteria and the restrictions set forth in Section 5.05 9(j) of the Credit limited liability company operating agreement of the Purchaser and Security Sections 5.01(a), 5.01(b), 5.02(a) and 5.02(b) of the Loan and Servicing Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the BuyerPurchaser;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the BuyerPurchaser, including including, without limitation, the Transferred AssetsSale Portfolio, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–—length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the BuyerPurchaser; and
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer Purchaser are available to pay the obligations and debts of the Seller.
Appears in 2 contracts
Samples: Omnibus Amendment (Ares Capital Corp), Second Tier Purchase and Sale Agreement (Ares Capital Corp)
Separate Identity. The Seller acknowledges that the Collateral AgentBuyer, the Administrative AgentAsset Manager, the Lenders holders of the Notes, the Trustee and the other Secured Parties parties to the CLO Transaction are entering into the transactions contemplated by this Agreement Agreement, the Indenture and the Credit and Security Agreement other Transaction Documents in reliance upon the Buyer’s identity of the Buyer as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the Buyer, Buyer and the Collateral Agent or the Administrative Agent Asset Manager may from time to time reasonably request, request to maintain the Buyer’s identity of the Buyer as a legal entity that is separate from the Seller and each other Affiliate of the Seller Seller, and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller represents, warrants and agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 of the Credit has maintained and Security Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the Buyer;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note that the assets of the Buyer, including the Transferred Assets, are not available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(vii) the Seller has maintained and shall maintain an arm’s–-length relationship with the Buyer and has not nor will not it hold itself out as being liable for the debts or obligations of the Buyer;
(viiii) the Seller has kept and shall keep its assets and its liabilities wholly separate from those of the Buyer; and
(viiiv) the Seller has avoided and will avoid the appearance, and has promptly corrected and will promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer are available to pay the obligations and debts of the Seller.
Appears in 2 contracts
Samples: Master Purchase and Sale Agreement (Ares Strategic Income Fund), Master Purchase and Sale Agreement (Ares Capital Corp)
Separate Identity. The Seller Contributor acknowledges that the Administrative Agent, the Collateral Agent, the Administrative AgentCollateral Custodian, the Lenders Lenders, the Lender Agents and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Loan and Servicing Agreement and the Credit and Security Agreement other Transaction Documents in reliance upon the BuyerContributee’s identity as a legal entity that is separate from the Seller Contributor and each other Affiliate of the SellerContributor. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller Contributor will take all reasonable stepssteps including, including without limitation, all steps that the Buyer, the Collateral Administrative Agent or the Administrative Collateral Agent may from time to time reasonably request, request to maintain the BuyerContributee’s identity as a legal entity that is separate from the Seller Contributor and each other Affiliate of the Seller Contributor and to make it manifest to third parties that the Buyer Contributee is an entity with assets and liabilities distinct from those of the Seller Contributor and each other Affiliate thereof (other than for tax or accounting purposes) and not just a division of the Seller Contributor or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller Contributor agrees that:
(i) the Seller Contributor will take all other actions necessary on its part to ensure that the Buyer Contributee is at all times in compliance with the criteria and the restrictions set forth in Section 5.05 9(j) of the Credit limited liability company operating agreement of the Contributee and Security Sections 5.01(a), 5.01(b), 5.02(a) and 5.02(b) of the Loan and Servicing Agreement;
(ii) the Seller Contributor shall maintain corporate records and books of account separate from those of the BuyerContributee;
(iii) the annual financial statements of the Seller Contributor shall disclose the effects of the SellerContributor’s transactions in accordance with GAAP and the annual financial statements of the Seller Contributor shall note not reflect in any way that the assets of the BuyerContributee, including including, without limitation, the Transferred AssetsContributed Portfolio, are not could be available to pay creditors of the Seller Contributor or any other Affiliate of the SellerContributor;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller Contributor as official records;
(v) the Seller Contributor shall maintain an arm’s–-length relationship with the Buyer Contributee and will not hold itself out as being liable for the debts of the BuyerContributee;
(vi) the Seller Contributor shall keep its assets and its liabilities wholly separate from those of the Buyer; andContributee;
(vii) the Seller Contributor will avoid the appearance, and promptly correct any known misperception of any of the SellerContributor’s creditors, that the assets of the Buyer Contributee are available to pay the obligations and debts of the SellerContributor; and
(viii) to the extent that the Contributor services the Loan Assets and performs other services on the Contributee’s behalf, the Contributor will clearly identify itself as an agent of the Contributee in the performance of such duties.
Appears in 2 contracts
Samples: Contribution Agreement, Contribution Agreement (Solar Senior Capital Ltd.)
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit and Security Agreement in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. Accordingly, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable steps, including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, to maintain the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all Each Originator shall, and shall cause each other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 member of the Credit and Security Agreement;
(ii) the Seller shall Parent Group to, maintain corporate records and books of account separate from those of the Buyer;.
(iiiii) the annual The financial statements of the Seller Parent and its consolidated Subsidiaries shall disclose the effects of the Sellereach Originator’s transactions in accordance with GAAP and, in addition, disclose that (A) Buyer’s sole business consists of the purchase of the Receivables from the Originators and the annual financial statements subsequent financing of such Receivables pursuant to the Seller shall note that Funding Agreement, (B) Buyer is a separate legal entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of Buyer’s assets prior to any value in Buyer becoming available to Buyer’s equity holders and (C) the assets of the Buyer, including the Transferred Assets, Buyer are not available to pay creditors of the Seller any Originator or any other Affiliate of the Seller;such Originator.
(iviii) the The resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller each Originator as official records;.
(viv) Each Originator shall, and shall cause each other member of the Seller shall Parent Group to, maintain an arm’s–-length relationship with the Buyer and will shall not hold itself out as being liable for the debts Debts of Buyer.
(v) Each Originator shall, and shall cause each other member of the Buyer;
(vi) the Seller shall Parent Group to, keep its assets and its liabilities wholly separate from those of Buyer.
(vi) Each Originator shall, and shall cause each other member of the Parent Group to, conduct its business solely in its own name or the name of the Member or Parent through its duly Authorized Officers or agents and in a manner designed not to mislead third parties as to the separate identity of Buyer; and.
(vii) the Seller will avoid the appearance, No Originator shall (and promptly correct any known misperception of any each Originator shall cause each other member of the Seller’s creditors, Parent Group not to) mislead third parties by conducting or appearing to conduct business on behalf of Buyer or expressly or impliedly representing or suggesting that such Originator or any other member of the Parent Group is liable or responsible for the Debts of Buyer or that the assets of such Originator or any other member of the Buyer Parent Group are available to pay the obligations creditors of Buyer.
(viii) The operating expenses and debts liabilities of Buyer shall be paid from Buyer’s own funds and not from any funds of any Originator or other member of the SellerParent Group.
(ix) Each Originator shall, and shall cause each other member of the Parent Group to, at all times have stationery and other business forms and a mailing address and telephone number separate from those of Buyer.
(x) Each Originator shall, and shall cause each other member of the Parent Group to, at all times limit its transactions with Buyer only to those expressly permitted hereunder or under any other Related Document.
(xi) Each Originator shall, and shall cause each other member of the Parent Group to, comply with (and cause to be true and correct) each of the facts and assumptions contained in the opinions of Xxxxxxx & Xxxxx LLP delivered pursuant to the Schedule of Documents.
Appears in 2 contracts
Samples: Receivables Sale and Servicing Agreement (Rexnord Corp), Receivables Sale and Servicing Agreement (Rexnord LLC)
Separate Identity. The Seller Assignor acknowledges that the Collateral Agent, the Administrative Agent, Agent and the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Credit Agreement and the Credit and Security Agreement other Loan Documents in reliance upon the Buyer’s identity of the Assignee as a legal entity that is separate from the Seller Assignor and each other Affiliate of the SellerAssignor. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller Assignor will take all reasonable stepssteps including, including without limitation, all steps that the Buyer, Assignee and the Collateral Agent or the Administrative Agent Investment Adviser may from time to time reasonably request, request to maintain the Buyer’s identity of the Assignee as a legal entity that is separate from the Seller Assignor and each other Affiliate of the Seller Assignor, and to make it manifest to third parties that the Buyer Assignee is an entity with assets and liabilities distinct from those of the Seller Assignor and each other Affiliate thereof and not just a division of the Seller Assignor or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller Assignor acknowledges the Assignees obligations under the Annex D of the Credit Agreement and represents, warrants and agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 of the Credit Assignor has maintained and Security Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the BuyerAssignee;
(iiiii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP Assignor has maintained and the annual financial statements of the Seller shall note that the assets of the Buyer, including the Transferred Assets, are not available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–-length relationship with the Buyer Assignee and has not nor will not it hold itself out as being liable for the debts or obligations of the BuyerAssignee;
(viiii) the Seller Assignor has kept and shall keep its assets and its liabilities wholly separate from those of the Buyer; andAssignee;
(viiiv) the Seller Assignor has avoided and will avoid the appearance, and has promptly corrected and will promptly correct any known misperception of any of the SellerAssignor’s creditors, that the assets of the Buyer Assignee are available to pay the obligations and debts of the SellerAssignor; and
(v) the Assignor has taken or refrained from taking, as applicable, each of the activities specified in the “non-consolidation” and “true sale” opinions of Winston & Xxxxxx LLP, dated as of the date hereof, upon which the conclusions expressed therein are based.
Appears in 2 contracts
Samples: Sale and Participation Agreement (American Capital, LTD), Sale Agreement (American Capital Senior Floating, Ltd.)
Separate Identity. The Seller acknowledges that the Administrative Agent, the Collateral Agent, the Administrative AgentCollateral Custodian, the Lenders Lenders, the Lender Agents and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Loan and Servicing Agreement and the Credit and Security Agreement other Transaction Documents in reliance upon the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the Buyer, the Collateral Administrative Agent or the Administrative Collateral Agent may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than for tax purposes) and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer Purchaser is at all times in compliance with the criteria and the restrictions set forth in Section 5.05 9(j) of the Credit limited liability company operating agreement of the Purchaser and Security Sections 5.01(a), 5.01(b), 5.02(a) and 5.02(b) of the Loan and Servicing Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the BuyerPurchaser;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the BuyerPurchaser, including including, without limitation, the Transferred AssetsSale Portfolio, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–-length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; andPurchaser;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer Purchaser are available to pay the obligations and debts of the Seller; and
(viii) to the extent that the Seller services the Loan Assets and performs other services on the Purchaser’s behalf, the Seller will clearly identify itself as an agent of the Purchaser in the performance of such duties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Fifth Street Finance Corp)
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative Agent, the Lenders Liquidation Agent and the other Secured Parties are entering into the transactions contemplated by this Agreement the Indenture and the Credit and Security Agreement other Transaction Documents in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreementhereof, the Seller will take all reasonable steps, including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, to maintain the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller or any such other AffiliateAffiliate (except as otherwise required under GAAP, applicable tax law or as required herein). Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 Sections 7.1€-(e) of the Credit and Security AgreementIndenture (provided, however, that the Seller does not hereby guaranty the solvency of the Buyer, agree to pay any of the Buyer’s obligations, or provide any guaranty or indemnity with respect to liabilities of the Buyer resulting from the performance or non-performance of the Collateral Obligations);
(ii) the Seller shall maintain corporate records and books of account separate from those of the Buyer; provided that the Buyer may be consolidated into the Seller solely for tax and accounting purposes;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way, other than by virtue of the Buyer being included in the consolidated financial statements of the Seller and any related disclosures as is necessary or appropriate under GAAP or applicable federal securities laws and regulations, that the assets Collateral Obligations of the Buyer, including including, without limitation, the Transferred Assets, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement herein shall be continuously maintained by the Seller as official records; provided that the Buyer may be consolidated into the Seller solely for tax and accounting purposes;
(v) the Seller shall maintain an arm’s–-length relationship with the Buyer and will not hold itself out as being liable for the debts of the Buyer;
(vi) except as permitted by the Indenture, the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; and;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s its creditors, that the assets of the Buyer are available to pay the obligations and debts of the Seller (it being understood that the Buyer may be consolidated with the Seller as is necessary or appropriate under GAAP and included in the Seller’s consolidated financial statements as contemplated above); and
(viii) to the extent that the Seller (in its capacity as the Investment Manager) manages the Collateral Obligations and performs other services on the Buyer’s behalf, it will clearly identify itself as an agent for the Buyer in the performance of such duties, provided, however, that the Seller will not be required to so identify itself when communicating with obligors not in its capacity as agent for the Buyer but rather in its capacity as agent for a group of lenders or other creditors.
Appears in 1 contract
Samples: Sale and Contribution Agreement (FS Energy & Power Fund)
Separate Identity. The Seller Assignor acknowledges that the Collateral Agent, the Administrative Agent, Agent and the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Credit Agreement and the other Credit and Security Agreement Documents in reliance upon the Buyer’s identity of the Assignee as a legal entity that is separate from the Seller Assignor and each other Affiliate of the SellerAssignor. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller Assignor will take all reasonable stepssteps including, including without limitation, all steps that the Buyer, Assignee and the Collateral Agent or the Administrative Agent Manager may from time to time reasonably request, request to maintain the Buyer’s identity of the Assignee as a legal entity that is separate from the Seller Assignor and each other Affiliate of the Seller Assignor, and to make it manifest to third parties that the Buyer Assignee is an entity with assets and liabilities distinct from those of the Seller Assignor and each other Affiliate thereof and not just a division of the Seller Assignor or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller Assignor acknowledges the Assignee’s obligations under the Credit Agreement and represents, warrants and agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 of the Credit Assignor has maintained and Security Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the BuyerAssignee;
(iiiii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP Assignor has maintained and the annual financial statements of the Seller shall note that the assets of the Buyer, including the Transferred Assets, are not available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–-length relationship with the Buyer Assignee and has not nor will not it hold itself out as being liable for the debts or obligations of the BuyerAssignee;
(viiii) the Seller Assignor has kept and shall keep its assets and its liabilities wholly separate from those of the Buyer; andAssignee;
(viiiv) the Seller Assignor has avoided and will avoid the appearance, and has promptly corrected and will promptly correct any known misperception of any of the SellerAssignor’s creditors, that the assets of the Buyer Assignee are available to pay the obligations and debts of the SellerAssignor; and
(v) the Assignor has taken or refrained from taking, as applicable, each of the activities specified in the “non-consolidation” and “true sale” opinions of Winston & Xxxxxx LLP, dated as of the date hereof, upon which the conclusions expressed therein are based.
Appears in 1 contract
Samples: Contribution and Master Participation Agreement (American Capital, LTD)
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative Agent, the Lenders Purchasers and the other Secured Parties are entering into the transactions contemplated by this Agreement the Sale and the Credit and Security Servicing Agreement in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Sellerany Affiliates thereof. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the BuyerAdministrative Agent, the Collateral Agent or Purchasers and the Administrative Agent other Secured Parties may from time to time reasonably request, request to maintain the Buyer’s identity as a separate legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate any Affiliates thereof and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 4.1(u) of the Credit Sale and Security Servicing Agreement;
(ii) the Seller shall maintain corporate limited liability company records and books of account separate from those of the Buyer;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the Buyer, including including, without limitation, the Transferred AssetsPurchased Collateral, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–length relationship with the Buyer and will not hold itself out as being liable for the debts of the Buyer;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; and;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer are available to pay the obligations and debts of the Seller; and
(viii) to the extent that the Seller services the Assets and performs other services on the Buyer’s behalf, the Seller will clearly identify itself as an agent for the Buyer in the performance of such duties; provided, however, that the Seller will not be required to so identify itself when communicating with the Obligors.
Appears in 1 contract
Samples: Sale and Contribution Agreement (Capitalsource Inc)
Separate Identity. The Seller acknowledges that the Administrative Agent, the Collateral Agent, the Administrative AgentCollateral Custodian, the Lenders Lenders, the Lender Agents and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Loan and Servicing Agreement and the Credit and Security Agreement other Transaction Documents in reliance upon the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the Buyer, the Collateral Administrative Agent or the Administrative Collateral Agent may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than for tax or accounting purposes) and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer Purchaser is at all times in compliance with the criteria and the restrictions set forth in Section 5.05 9(j) of the Credit limited liability company operating agreement of the Purchaser and Security Sections 5.01(a), 5.01(b), 5.02(a) and 5.02(b) of the Loan and Servicing Agreement; provided that, for the avoidance of doubt, the Seller shall not be required to expend any of its own funds to cause the Purchaser to be in compliance with subsection 5.01(b)(xvii) or subsection 5.02(a)(v) of the Loan and Servicing Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the BuyerPurchaser;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the BuyerPurchaser, including including, without limitation, the Transferred AssetsSale Portfolio, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; andPurchaser;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer Purchaser are available to pay the obligations and debts of the Seller; and
(viii) to the extent that the Seller services the Loan Assets and performs other services on the Purchaser’s behalf, the Seller will clearly identify itself as an agent of the Purchaser in the performance of such duties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Golub Capital BDC, Inc.)
Separate Identity. The Seller acknowledges that the Administrative Agent, the Collateral Agent, the Administrative AgentCollateral Custodian, the Lenders Lenders, the Lender Agents and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Loan and Security Agreement and the Credit and Security Agreement other Transaction Documents in reliance upon the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the Buyer, the Collateral Administrative Agent or the Administrative Collateral Agent may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than for tax purposes) and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part shall use commercially reasonable efforts to ensure that the Buyer Purchaser is at all times in compliance with Section 5.05 with, and shall take no action which would cause the Purchaser to fail to be in compliance with, the criteria and the restrictions set forth in the incorporation documents of the Credit Purchaser and Sections 5.01(a), 5.01(b), 5.02(a) and 5.02(b) of the Loan and Security Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the BuyerPurchaser;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual Seller shall maintain separate financial statements from the Purchaser; provided, however, that the Purchaser’s assets may be included in a consolidated financial statement of the Seller if (A) appropriate notation shall note be made on such consolidated financial statements to indicate the separateness of the Purchaser from the Seller and to indicate that the Purchaser’s assets of the Buyer, including the Transferred Assets, and credit are not available to pay creditors satisfy the debts and other obligations of the Seller or any other Affiliate of Person and (B) such assets shall also be listed on the SellerPurchaser’s own separate books and records;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; andPurchaser;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer Purchaser are available to pay the obligations and debts of the Seller; and
(viii) to the extent that the Seller services the Loans and performs other services on the Purchaser’s behalf, the Seller will clearly identify itself as an agent of the Purchaser (and not in any other capacity) in the performance of such duties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (FS Investment Corp III)
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit and Security Agreement in reliance upon the Buyer’s identity Originator shall take all actions required to maintain SPV's status as a separate legal entity that is separate from the Seller and each other Affiliate of the Seller. Accordingly, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepsentity, including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, to maintain the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest (i) not holding SPV out to third parties that the Buyer is as other than an entity with assets and liabilities distinct from those the Originator and the Originator's other Subsidiaries; (ii) not holding itself out to be responsible for the Indebtedness of the Seller and each SPV or, other Affiliate thereof and not just a division than by reason of the Seller owning, membership interests in SPV, for any decisions or any actions relating to SPV; (iii) preparing separate financial statements for SPV; (iv) taking such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions as are necessary on its part to ensure that all procedures required by its and SPV's respective limited liability company agreement and certificate of formation are duly and validly taken; (v) keeping correct and complete records and books of account and minutes; and (vi) not acting in any manner that could foreseeably mislead others with respect to SPV's separate identity. In addition to the Buyer is at all times foregoing, the Originator and SPV shall take such actions as shall be required in compliance with Section 5.05 of the Credit and Security Agreement;order that:
(iii) the Seller The Originator shall maintain corporate records and books of account separate from those of the Buyer;SPV.
(iiiii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note that the assets of the Buyer, including the Transferred Assets, are not available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the The resolutions, agreements and other instruments underlying the transactions trans actions described in this Agreement shall be continuously maintained by the Seller Originator as official records;.
(viii) the Seller The Originator shall maintain an arm’s–arm's-length relationship with the Buyer SPV and will shall not hold itself out as being liable for the debts Indebtedness of the Buyer;SPV.
(viiv) the Seller The Originator shall keep its assets and its liabilities wholly separate from those of the Buyer; andSPV.
(viiv) The Originator shall not mislead third parties by conducting or appearing to conduct business on behalf of SPV or expressly or impliedly representing or suggesting that the Seller will avoid Originator is liable or responsible for the appearance, and promptly correct any known misperception Indebtedness of any of the Seller’s creditors, SPV or that the assets of the Buyer Originator are available to pay the obligations creditors of SPV.
(vi) The Originator shall at all times have stationery and debts other business forms and a mailing address and telephone number separate from those of SPV.
(vii) The Originator shall at all times limit its transactions with SPV only to those expressly permitted hereunder or under any other Transaction Document.
(viii) The Originator shall comply with (and cause to be true and correct) each of the Sellerfacts and assumptions relating to the Originator and SPV contained in the no substantive consolidation opinion of White & Case LLC delivered on the Closing Date.
Appears in 1 contract
Separate Identity. The Seller acknowledges that the Collateral Administrative Agent, each Purchaser Agent, the Administrative Agent, the Lenders Purchasers and the other Secured Parties are entering into the transactions contemplated by this Agreement the Sale and the Credit and Security Servicing Agreement in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Sellerany Affiliates thereof. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the BuyerAdministrative Agent, each Purchaser Agent, the Collateral Agent or Purchasers and the Administrative Agent other Secured Parties may from time to time reasonably request, request to maintain the Buyer’s identity as a separate legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate any Affiliates thereof and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 4.1(u) of the Credit Sale and Security Servicing Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the Buyer;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the Buyer, including including, without limitation, the Transferred AssetsPurchased Collateral, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–length relationship with the Buyer and will not hold itself out as being liable for the debts of the Buyer;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; and;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer are available to pay the obligations and debts of the Seller; and
(viii) to the extent that the Seller services the Assets and performs other services on the Buyer’s behalf, the Seller will clearly identify itself as an agent for the Buyer in the performance of such duties; provided, however, that the Seller will not be required to so identify itself when communicating with the Obligors.
Appears in 1 contract
Samples: Sale and Contribution Agreement (Capitalsource Inc)
Separate Identity. The Seller acknowledges that the Administrative Agent, the Collateral Agent, the Administrative AgentCollateral Custodian, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Loan and Servicing Agreement and the Credit and Security Agreement other Transaction Documents in reliance upon the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the Buyer, the Collateral Administrative Agent or the Administrative Collateral Agent may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than for tax purposes) and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer Purchaser is at all times in compliance with the criteria and the restrictions set forth in Section 5.05 9(j) of the Credit limited liability company operating agreement of the Purchaser and Security Sections 5.01(a), 5.01(b), 5.02(a) and 5.02(b) of the Loan and Servicing Agreement; provided that, for the avoidance of doubt, the Seller shall not be required to expend any of its own funds to cause the Purchaser to be in compliance with subsection 5.02(a)(v) of the Loan and Servicing Agreement or subsection 5.01(b)(xvii) of the Loan and Servicing Agreement (it being understood that this proviso shall in no way affect the obligation of Seller to manage the activities and liabilities of the Purchaser such that the Purchaser maintains compliance with either of the foregoing subsections);
(ii) the Seller shall maintain corporate records and books of account separate from those of the BuyerPurchaser;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the BuyerPurchaser, including including, without limitation, the Transferred AssetsSale Portfolio, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; andPurchaser;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer Purchaser are available to pay the obligations and debts of the Seller; and
(viii) to the extent that the Seller services the Loan Assets and performs other services on the Purchaser’s behalf, the Seller will clearly identify itself as an agent of the Purchaser in the performance of such duties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Fifth Street Finance Corp)
Separate Identity. The Seller acknowledges that the Collateral Borrower, the Agent, the Administrative AgentTrustee, the Lenders Note Purchaser and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Amended and Restated Sale and Servicing Agreement and the Credit and Security Agreement other Transaction Documents in reliance upon the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the BuyerBorrower, the Collateral Agent or Agent, the Administrative Agent Trustee, the Note Purchaser and the other Secured Parties may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than for tax purposes) and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer Purchaser is at all times in compliance with the criteria and the restrictions set forth in Section 5.05 9(j) of the Credit and Security Agreementlimited liability company operating agreement of the Purchaser;
(ii) the Seller shall maintain corporate records and books of account separate from those of the BuyerPurchaser;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the BuyerPurchaser, including including, without limitation, the Transferred AssetsSale Portfolio, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–—length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; andPurchaser;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer Purchaser are available to pay the obligations and debts of the Seller; and
(viii) to the extent that the Seller services the Loan Assets and performs other services on the Purchaser’s behalf, the Seller will clearly identify itself as an agent for the Purchaser in the performance of such duties.
Appears in 1 contract
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit and Security Agreement in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. Accordingly, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable steps, including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, to maintain the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all Such Transferor shall, and shall cause each other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 member of the Credit and Security Agreement;
(ii) the Seller shall Parent Group to, maintain corporate records and books of account separate from those of the Buyer;.
(iiiii) the annual The financial statements of the Seller Parent and its consolidated Subsidiaries shall disclose the effects of the Sellereach Transferor’s transactions in accordance with GAAP and, in addition, disclose that (A) Buyer’s sole business consists of the purchase or acceptance through capital contribution of the Transferred Receivables from such Transferor and the annual financial statements subsequent financing of such Receivables pursuant to the Seller shall note that Purchase Agreement, (B) Buyer is a separate legal entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of Buyer’s assets prior to any value in Buyer becoming available to Buyer’s equity holders and (C) the assets of the Buyer, including the Transferred Assets, Buyer are not available to pay creditors of the Seller such Transferor or any other Affiliate of the Seller;such Transferor.
(iviii) the The resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller such Transferor as official records;.
(viv) Such Transferor shall, and shall cause each other member of the Seller shall Parent Group to, maintain an arm’s–-length relationship with the Buyer and will shall not hold itself out as being liable for the debts Debts of Buyer.
(v) Such Transferor shall, and shall cause each other member of the Buyer;
(vi) the Seller shall Parent Group to, keep its assets and its liabilities wholly separate from those of Buyer.
(vi) Such Transferor shall, and shall cause each other member of the Parent Group to, conduct its business solely in its own name or the name of the Parent through its duly Authorized Officers or agents and in a manner designed not to mislead third parties as to the separate identity of Buyer; and.
(vii) the Seller will avoid the appearanceSuch Transferor shall respond to any inquiries with respect to ownership of a Transferred Receivable by stating that such Transferred Receivable has been sold to Buyer, and promptly correct any known misperception of any subsequently assigned by Buyer to the Purchaser Agent for the benefit of the Seller’s creditors, Purchasers;
(viii) Such Transferor shall not (and such Transferor shall cause each other member of the Parent Group not to) mislead third parties by conducting or appearing to conduct business on behalf of Buyer or expressly or impliedly representing or suggesting that such Transferor or any other member of the Parent Group is liable or responsible for the Debts of Buyer or that the assets of such Transferor or any other member of the Buyer Parent Group are available to pay the obligations creditors of Buyer.
(ix) The operating expenses and debts liabilities of Buyer shall be paid from Buyer’s own funds and not from any funds of such Transferor or other member of the SellerParent Group.
(x) Such Transferor shall, and shall cause each other member of the Parent Group to, at all times limit its transactions with Buyer only to those expressly permitted hereunder or under any other Related Document.
(xi) Such Transferor shall, and shall cause each other member of the Parent Group to, comply with (and cause to be true and correct) each of the facts and assumptions contained in the opinions of Weil, Gotshal & Xxxxxx LLP delivered pursuant to the Schedule of Documents.
Appears in 1 contract
Samples: Receivables Transfer and Servicing Agreement (Univision Holdings, Inc.)
Separate Identity. The Seller Transferor acknowledges that the Administrative Agent, the Collateral Agent, the Administrative AgentCollateral Custodian, the Lenders Lender and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Loan and Servicing Agreement and the Credit and Security Agreement other Transaction Documents in reliance upon the BuyerPurchaser’s identity as a legal entity that is separate from the Seller Transferor and each other Affiliate of the SellerTransferor. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller Transferor will take all reasonable stepssteps including, including without limitation, all steps that the BuyerAdministrative Agent, the Collateral Agent Agent, the Lender or the Administrative Agent other Secured Parties may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal entity that is separate from the Seller Transferor and each other Affiliate of the Seller Transferor and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller Transferor and each other Affiliate thereof and not just a division of the Seller Transferor or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller Transferor agrees that:
(i) the Seller Transferor will take all other actions necessary on its part to ensure that the Buyer Purchaser is at all times in compliance with Section 5.05 the criteria and the restrictions set forth in Sections 1.7 and 1.8 of the Credit limited liability company agreement of the Purchaser and Security Sections 5.01(a), 5.01(b), 5.02(a) and 5.02(b) of the Loan and Servicing Agreement;
(ii) the Seller Transferor shall maintain corporate its records and books of account separate from those of the BuyerPurchaser;
(iii) the annual financial statements of the Seller Transferor shall disclose the effects of the SellerTransferor’s transactions in accordance with GAAP and the annual financial statements of the Seller Transferor shall note not reflect in any way that the assets of the BuyerPurchaser, including including, without limitation, the Transferred AssetsSale Portfolio, are not could be available to pay creditors of the Seller Transferor or any other Affiliate of the SellerTransferor;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller Transferor as official records;
(v) the Seller Transferor shall maintain an arm’s–-length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(vi) the Seller Transferor shall keep its assets and its liabilities wholly separate from those of the Buyer; andPurchaser;
(vii) the Seller Transferor will avoid the appearance, and promptly correct any known misperception of any of the SellerTransferor’s creditors, that the assets of the Buyer Purchaser are available to pay the obligations and debts of the SellerTransferor; and
(viii) to the extent that the Transferor services the Loan Assets and performs other services on the Purchaser’s behalf, the Transferor will clearly identify itself as an agent of the Purchaser in the performance of such duties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (GOLUB CAPITAL BDC, Inc.)
Separate Identity. The Seller acknowledges that the Administrative Agent, the Collateral Agent, the Administrative AgentCollateral Custodian, the Lenders Lender and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Loan and Servicing Agreement and the Credit and Security Agreement other Transaction Documents in reliance upon the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the BuyerAdministrative Agent, the Collateral Agent Agent, the Lender or the Administrative Agent other Secured Parties may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than for tax purposes) and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer Purchaser is at all times in compliance with the criteria and the restrictions set forth in Section 5.05 9(j) of the Credit limited liability company operating agreement of the Purchaser and Security Sections 5.01(a), 5.01(b), 5.02(a) and 5.02(b) of the Loan and Servicing Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the BuyerPurchaser;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the BuyerPurchaser, including including, without limitation, the Transferred AssetsSale Portfolio, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–—length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; andPurchaser;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer Purchaser are available to pay the obligations and debts of the Seller; and
(viii) to the extent that the Seller services the Loan Assets and performs other services on the Purchaser’s behalf, the Seller will clearly identify itself as an agent of the Purchaser in the performance of such duties.
Appears in 1 contract
Separate Identity. The Seller acknowledges that the Collateral AgentBuyer, the Administrative AgentAsset Manager, the Lenders holders of the Debt, the Collateral Trustee and the other Secured Parties parties to the CLO Transaction are entering into the transactions contemplated by this Agreement, the Indenture, the Credit Agreement and the Credit and Security Agreement other Transaction Documents in reliance upon the Buyer’s identity of the Buyer as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the Buyer, Buyer and the Collateral Agent or the Administrative Agent Asset Manager may from time to time reasonably request, request to maintain the Buyer’s identity of the Buyer as a legal entity that is separate from the Seller and each other Affiliate of the Seller Seller, and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller represents, warrants and agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 of the Credit has maintained and Security Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the Buyer;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note that the assets of the Buyer, including the Transferred Assets, are not available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(vii) the Seller has maintained and shall maintain an arm’s–-length relationship with the Buyer and has not nor will not it hold itself out as being liable for the debts or obligations of the Buyer;
(viiii) the Seller has kept and shall keep its assets and its liabilities wholly separate from those of the Buyer; and
(viiiv) the Seller has avoided and will avoid the appearance, and has promptly corrected and will promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer are available to pay the obligations and debts of the Seller.
Appears in 1 contract
Samples: Master Purchase and Sale Agreement (Ares Capital Corp)
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit and Security Agreement in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreementhereof, the Seller will take all reasonable steps, including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, to maintain the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller or any such other AffiliateAffiliate (except as otherwise required under GAAP, applicable tax law or as required herein). Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 5.3 of the Credit and Security AgreementAgreement (provided, however, that the Seller does not hereby guaranty the solvency of the Buyer, agree to pay any of the Buyer’s obligations, or provide any guaranty or indemnity with respect to liabilities of the Buyer resulting from the performance or non-performance of the Collateral Assets);
(ii) the Seller shall maintain corporate records and books of account separate from those of the Buyer;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way, other than by virtue of the Buyer being included in the consolidated financial statements of the Seller and any related disclosures as is necessary or appropriate under GAAP or applicable federal securities laws and regulations, that the assets of the Buyer, including including, without limitation, the Transferred Assets, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement herein shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–-length relationship with the Buyer and will not hold itself out as being liable for the debts of the Buyer;
(vi) except as permitted by the Credit Agreement and hereunder, the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; and;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s its creditors, that the assets of the Buyer are available to pay the obligations and debts of the Seller (it being understood that the Buyer may be consolidated with the Seller as is necessary or appropriate under GAAP and included in the Seller’s consolidated financial statements as contemplated above); and
(viii) to the extent that the Seller services the Collateral Assets and performs other services on the Buyer’s behalf, it will clearly identify itself as an agent for the Buyer in the performance of such duties, provided, however, that the Seller will not be required to so identify itself when communicating with obligors not in its capacity as agent for the Buyer but rather in its capacity as agent for a group of lenders.
Appears in 1 contract
Samples: Loan Sale and Contribution Agreement (Stone Point Credit Corp)
Separate Identity. The Seller acknowledges that the Collateral AgentBuyer, the Administrative Agent, the Lenders Trustee and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit and Security Agreement Indenture in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller(except as otherwise required under GAAP or applicable tax law). AccordinglyTherefore, from and after the date of execution and delivery of this Agreementhereof, the Seller will take all reasonable steps, including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, to maintain the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller (except as otherwise required under GAAP or any such other Affiliateapplicable tax law). Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 of the Credit and Security Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the Buyer;
(iiiii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the Buyer, including including, without limitation, the Transferred AssetsCollateral, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iviii) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(viv) except as otherwise expressly permitted or required by the Transaction Documents, the Seller shall maintain an arm’s–length relationship with the Buyer and Buyer;
(v) the Seller will not hold itself out as being liable for the debts of the Buyer;
(vi) except as otherwise permitted under the Transaction Documents, the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; and;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer are available to pay the obligations and debts of the Seller;
(viii) to the extent that the Seller performs any services on the Buyer’s behalf, the Seller will clearly identify itself as an agent for the Buyer in the performance of such duties; provided, however, that the Seller will not be required to so identify itself when communicating with the Obligors not in its capacity as agent for the Buyer but rather in its capacity as agent for a group of lenders; and
(ix) the Seller shall take or refrain from taking, as applicable, each of the activities specified or assumed in the true sale opinion of Dechert LLP delivered on the Original Closing Date, upon which the conclusions expressed therein are based.
Appears in 1 contract
Samples: Loan Sale and Contribution Agreement (Monroe Capital Income Plus Corp)
Separate Identity. The Seller acknowledges that Neither Borrower nor any of its Subsidiaries shall fail to correct any known misunderstandings of any Person regarding the Collateral Agentseparate identity of Borrower or its Subsidiaries, or fail either to hold itself out to the Administrative Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit and Security Agreement in reliance upon the Buyer’s identity public as a legal entity that is separate from the Seller and each other Affiliate of the Seller. Accordingly, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable steps, including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, to maintain the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each any other Affiliate thereof and Person, or fail to conduct its business solely in its own name in order not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) to mislead any other Person as to the Seller will take all entity with which such other actions necessary on its part to ensure that the Buyer Person is at all times in compliance with Section 5.05 of the Credit and Security Agreement;
transacting business, or (ii) the Seller shall maintain corporate records and books of account separate from those of the Buyer;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note to suggest that the assets of the Buyer, including the Transferred Assets, are not available to pay creditors of the Seller Borrower or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–length relationship with the Buyer and will not hold itself out as being liable its Subsidiaries is responsible for the debts of the Buyer;any other Person (including any of its Affiliates or Related Persons).
(vi) the Seller shall keep its assets and its liabilities wholly separate from those 4. Solely for purposes of the Buyer; andcalculation of Fixed Charges for calendar years 2014 and 2015, a cash distribution of up to $7,500,000.00 made by Borrower to Holdings on March 30, 2015 shall be treated as having been made as a cash distribution in the fourth quarter of 2014.
(vii) 5. The parties hereto further agree as follows:
a. Nothing in this Amendment shall be construed or deemed to affect or jeopardize the Seller will avoid enforceability of the appearanceCredit Documents, nor to affect or jeopardize the liens or obligations created thereunder.
b. Except as specifically amended hereby, all other terms, conditions, and promptly correct any known misperception of any provisions contained in the Credit Agreement shall remain in full force and effect and unchanged.
c. Borrower represents to each Lender and the Agent that it has full power to undertake the modification of the Seller’s creditorsCredit Agreement as provided in this Amendment and the person executing and delivering this Amendment on its behalf has full power to execute and deliver this Amendment on behalf of Borrower
d. This Amendment is binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and assigns.
e. The parties hereto agree that this Amendment may be executed in counterparts, each of which shall be deemed an original, and said counterparts shall together constitute one and the assets same agreement, binding all of the Buyer are available to pay the obligations and debts parties hereto, notwithstanding all of the Sellerparties are not signatory to the original or same counterparts. For all purposes, including, without limitation, delivery of this Amendment, duplicate unexecuted and unacknowledged pages of the counterparts may be discarded and the remaining pages assembled as one document.
Appears in 1 contract
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit and Security Agreement in reliance upon the Buyer’s identity Originator shall take all actions required to maintain SPV's status as a separate legal entity that is separate from the Seller and each other Affiliate of the Seller. Accordingly, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepsentity, including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, to maintain the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest (i) not holding SPV out to third parties that the Buyer is as other than an entity with assets and liabilities distinct from those the Originator and the Originator's other Subsidiaries; (ii) not holding itself out to be responsible for the Indebtedness of the Seller and each SPV or, other Affiliate thereof and not just a division than by reason of the Seller owning, membership interests in SPV, for any decisions or any actions relating to SPV; (iii) preparing separate financial statements for SPV; (iv) taking such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions as are necessary on its part to ensure that all procedures required by its and SPV's respective limited liability company agreement and certificate of formation are duly and validly taken; (v) keeping correct and complete records and books of account and minutes; and (vi) not acting in any manner that could foreseeably mislead others with respect to SPV's separate identity. In addition to the Buyer is at all times foregoing, the Originator and SPV shall take such actions as shall be required in compliance with Section 5.05 of the Credit and Security Agreement;order that:
(iii) the Seller The Originator shall maintain corporate records and books of account separate from those of the Buyer;SPV.
(iiiii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note that the assets of the Buyer, including the Transferred Assets, are not available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the The resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller Originator as official records;.
(viii) the Seller The Originator shall maintain an arm’s–arm's-length relationship with the Buyer SPV and will shall not hold itself out as being liable for the debts Indebtedness of the Buyer;SPV.
(viiv) the Seller The Originator shall keep its assets and its liabilities wholly separate from those of the Buyer; andSPV.
(viiv) The Originator shall not mislead third parties by conducting or appearing to conduct business on behalf of SPV or expressly or impliedly representing or suggesting that the Seller will avoid Originator is liable or responsible for the appearance, and promptly correct any known misperception Indebtedness of any of the Seller’s creditors, SPV or that the assets of the Buyer Originator are available to pay the obligations creditors of SPV.
(vi) The Originator shall at all times have stationery and debts other business forms and a mailing address and telephone number separate from those of SPV.
(vii) The Originator shall at all times limit its transactions with SPV only to those expressly permitted hereunder or under any other Transaction Document.
(viii) The Originator shall comply with (and cause to be true and correct) each of the Sellerfacts and assumptions relating to the Originator and SPV contained in the no substantive consolidation opinion of White & Case LLC delivered on the Closing Date.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Greyhound Funding LLC)
Separate Identity. The Seller acknowledges that the Collateral Administrative Agent, the Administrative Collateral Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Credit Agreement and the Credit and Security Agreement other Facility Documents in reliance upon the BuyerPurchaser’s identity as a legal an entity that is being separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the Buyer, Administrative Agent and the Collateral Agent or the Administrative Agent may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal an entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than for tax purposes) and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer Purchaser is at all times in compliance with the criteria and the restrictions set forth in Section 9(j) of the amended and restated limited liability company agreement of the Purchaser and Sections 5.01(k), 5.04(d) and 5.05 of the Credit and Security Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the BuyerPurchaser;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the BuyerPurchaser, including including, without limitation, the Transferred AssetsSale Portfolio, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the BuyerPurchaser; and
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer Purchaser are available to pay the obligations and debts of the Seller.
Appears in 1 contract
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit and Security Agreement in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. Accordingly, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable steps, including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, to maintain the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all Each Originator shall, and shall cause each other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 member of the Credit and Security Agreement;
(ii) the Seller shall Parent Group to, maintain corporate records and books of account separate from those of the Buyer;.
(iiiii) the annual The financial statements of the Seller Parent and its consolidated Subsidiaries shall disclose the effects of the Sellereach Originator’s transactions in accordance with GAAP and, in addition, disclose that (A) Buyer’s sole business consists of the purchase of the Receivables from the Originators and the annual financial statements subsequent financing of such Receivables pursuant to the Seller shall note that Funding Agreement, (B) Buyer is a separate legal entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of Buyer’s assets prior to any value in Buyer becoming available to Buyer’s equity holders and (C) the assets of the Buyer, including the Transferred Assets, Buyer are not available to pay creditors of the Seller any Originator or any other Affiliate of the Seller;such Originator.
(iviii) the The resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller each Originator as official records;.
(viv) Each Originator shall, and shall cause each other member of the Seller shall Parent Group to, maintain an arm’s–-length relationship with the Buyer and will shall not hold itself out as being liable for the debts Debts of Buyer.
(v) Each Originator shall, and shall cause each other member of the Buyer;
(vi) the Seller shall Parent Group to, keep its assets and its liabilities wholly separate from those of Buyer.
(vi) Each Originator shall, and shall cause each other member of the Parent Group to, conduct its business solely in its own name or the name of the Member or Parent through its duly Authorized Officers or agents and in a manner designed not to mislead third parties as to the separate identity of Buyer; and.
(vii) the Seller will avoid the appearance, No Originator shall (and promptly correct any known misperception of any each Originator shall cause each other member of the Seller’s creditors, Parent Group not to) mislead third parties by conducting or appearing to conduct business on behalf of Buyer or expressly or impliedly representing or suggesting that such Originator or any other member of the Parent Group is liable or responsible for the Debts of Buyer or that the assets of such Originator or any other member of the Buyer Parent Group are available to pay the obligations creditors of Buyer. Receivables Sale and debts Servicing Agreement
(viii) The operating expenses and liabilities of Buyer shall be paid from Buyer’s own funds and not from any funds of any Originator or other member of the SellerParent Group.
(ix) Each Originator shall, and shall cause each other member of the Parent Group to, at all times have stationery and other business forms and a mailing address and telephone number separate from those of Buyer.
(x) Each Originator shall, and shall cause each other member of the Parent Group to, at all times limit its transactions with Buyer only to those expressly permitted hereunder or under any other Related Document.
(xi) Each Originator shall, and shall cause each other member of the Parent Group to, comply with (and cause to be true and correct) each of the facts and assumptions contained in the opinions of Xxxxxxx & Xxxxx LLP delivered pursuant to the Schedule of Documents.
Appears in 1 contract
Separate Identity. The Seller acknowledges that the Collateral Borrower, the Agent, the Administrative AgentTrustee, the Lenders Note Purchaser and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Note Purchase Agreement and the Credit and Security Agreement other Transaction Documents in reliance upon the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the SellerSeller (other than the Guarantor). AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the BuyerBorrower, the Collateral Agent or Agent, the Administrative Agent Trustee, the Note Purchaser and the other Secured Parties may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller (other than the Guarantor) and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than the Guarantor)(other than for tax purposes) and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer Purchaser is at all times in compliance with the criteria and the restrictions set forth in Section 5.05 9(j) of the Credit and Security Agreementlimited liability company operating agreement of the Purchaser;
(ii) the Seller shall maintain corporate records and books of account separate from those of the BuyerPurchaser;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the BuyerPurchaser, including including, without limitation, the Transferred AssetsSale Portfolio, are not could be available to pay creditors of the Seller or any other Affiliate of the SellerSeller (other than the Guarantor);
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–—length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; andPurchaser;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer Purchaser are available to pay the obligations and debts of the Seller; and
(viii) to the extent that the Seller services the Loan Assets and performs other services on the Purchaser’s behalf, the Seller will clearly identify itself as an agent for the Purchaser in the performance of such duties.
Appears in 1 contract
Samples: First Tier Purchase and Sale Agreement (Ares Capital Corp)
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative AgentTrustee, the Lenders Note Purchaser and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Note Purchase Agreement and the Credit and Security Agreement other Transaction Documents in reliance upon the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the SellerSeller (other than the Guarantor). AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the BuyerAgent, the Collateral Agent or Trustee, the Administrative Agent Note Purchaser and the other Secured Parties may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller (other than the Guarantor) and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than the Guarantor)(other than for tax purposes) and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer Purchaser is at all times in compliance with the criteria and the restrictions set forth in Section 5.05 9(j) of the Credit limited liability company operating agreement of the Purchaser and Security Sections 5.01(a), 5.01(b), 5.02(a) and 5.02(b) of the Note Purchase Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the BuyerPurchaser;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the BuyerPurchaser, including including, without limitation, the Transferred AssetsSale Portfolio, are not could be available to pay creditors of the Seller or any other Affiliate of the SellerSeller (other than the Guarantor);
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the BuyerPurchaser; and
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer Purchaser are available to pay the obligations and debts of the Seller.
Appears in 1 contract
Samples: Second Tier Purchase and Sale Agreement (Ares Capital Corp)
Separate Identity. The Seller acknowledges that the Collateral Administrative Agent, the Administrative Collateral Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and Agreement, the Revolving Credit and Security Agreement and the other Facility Documents in reliance upon the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable steps, steps including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than for tax or accounting purposes) and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer Purchaser is at all times in compliance with the criteria and the restrictions set forth in Section 5.05 1.7 of the Credit and Security Agreementlimited liability company agreement of the Purchaser;
(ii) the Seller shall maintain corporate records and its records, books of account and bank accounts separate and apart from those of the BuyerPurchaser;
(iii) the annual Seller shall maintain separate financial statements statements, showing its assets and liabilities separate and apart from those of the Seller Purchaser and shall disclose not have its assets listed on any financial statement of the effects Purchaser; provided, however, that the Purchaser’s assets may be included in a consolidated financial statement of the Seller’s transactions in accordance with GAAP and the annual ; provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Purchaser from the Seller shall note and to indicate that the Purchaser’s assets of the Buyer, including the Transferred Assets, and credit are not available to pay creditors satisfy the debts and other obligations of the Seller or any other Affiliate of Purchaser and (ii) such assets shall also be listed on the SellerPurchaser’s own separate balance sheet;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) except as expressly permitted in the Revolving Credit and Security Agreement, the Seller shall maintain an arm’s–length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(vi) the Seller shall keep hold itself out to the public as a legal entity separate and distinct from the Purchaser and conduct its assets and business solely in its liabilities wholly separate from those own name in order not (i) to mislead others as to the identity of the Buyer; andPurchaser, or (ii) to suggest that it is responsible for the debts of the Purchaser;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that shall not commingle its assets with the assets of the Buyer are available Purchaser; and
(viii) to pay the obligations extent that the Seller or an Affiliate of Seller services the Loan Assets and debts performs other services on the Purchaser’s behalf, the Seller will clearly identify itself or such Affiliate as an agent of the SellerPurchaser in the performance of such duties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pennantpark Investment Corp)
Separate Identity. The Seller acknowledges that the Administrative Agent, the Collateral Agent, the Administrative AgentCollateral Custodian, the Lenders Lenders, the Lender Agents and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Loan and Servicing Agreement and the Credit and Security Agreement other Transaction Documents in reliance upon the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the Buyer, the Collateral Administrative Agent or the Administrative Collateral Agent may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than for tax purposes) and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part shall use commercially reasonable efforts to ensure that the Buyer Purchaser is at all times in compliance with Section 5.05 with, and shall take no action which would cause the Purchaser to fail to be in compliance with, the criteria and the restrictions set forth in the incorporation documents of the Credit Purchaser and Security Sections 5.01(a), 5.01(b), 5.02(a) and 5.02(b) of the Loan and Servicing Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the BuyerPurchaser;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the BuyerPurchaser, including including, without limitation, the Transferred AssetsSale Portfolio, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–-length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; andPurchaser;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer Purchaser are available to pay the obligations and debts of the Seller; and
(viii) to the extent that the Seller services the Loans and performs other services on the Purchaser’s behalf, the Seller will clearly identify itself as an agent of the Purchaser (and not in any other capacity) in the performance of such duties.
Appears in 1 contract
Separate Identity. The Seller acknowledges that the Collateral AgentBuyer, the Administrative AgentDepositor, the Lenders Trustee and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit and Security Agreement Indenture in reliance upon each of the Buyer’s and the Depositor’s identity as a legal entity that is separate from the Seller (except as otherwise required under GAAP or applicable tax law). Therefore, from and after the date hereof, the Seller will take all reasonable steps to maintain each of the Buyer’s, the Depositor’s and each Issuer Subsidiary’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. Accordingly, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable steps, including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, to maintain the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that each of the Buyer Buyer, the Depositor and each Issuer Subsidiary is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller (except as otherwise required under GAAP or any such other Affiliateapplicable tax law). Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 of the Credit and Security Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the Buyer, the Depositor and the Issuer Subsidiaries;
(iiiii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the Buyer, including the Transferred AssetsDepositor or the Issuer Subsidiaries, are not including, without limitation, the Collateral, could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iviii) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(viv) except as otherwise expressly permitted or required by the Transaction Documents or the Depositor’s limited liability company agreement, the Seller shall maintain an arm’s–length relationship with the Buyer Buyer, the Depositor and each Issuer Subsidiary;
(v) the Seller will not hold itself out as being liable for the debts of the Buyer, the Depositor or the Issuer Subsidiaries;
(vi) except as otherwise permitted under the Transaction Documents or the Depositor’s limited liability company agreement, the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; and, the Depositor and the Issuer Subsidiaries;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer Buyer, the Depositor or either Issuer Subsidiary are available to pay the obligations and debts of the Seller;
(viii) to the extent that the Seller performs any services on the Buyer’s, the Depositor’s or Issuer Subsidiaries’ behalf, the Seller will clearly identify itself as an agent for the Buyer, the Depositor or the Issuer Subsidiaries, as applicable, in the performance of such duties; provided, however, that the Seller will not be required to so identify itself when communicating with the Obligors not in its capacity as agent for the Buyer, the Depositor or Issuer Subsidiaries but rather in its capacity as agent for a group of lenders; and
(ix) the Seller shall (and shall cause the Depositor to) take or refrain from taking, as applicable, each of the activities specified or assumed in the true sale and non-consolidation opinions of Dechert LLP delivered on the Closing Date, upon which the conclusions expressed therein are based.
Appears in 1 contract
Samples: Loan Sale and Contribution Agreement (AB Private Credit Investors Corp)
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit and Security Agreement in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreementhereof, the Seller will take all reasonable steps, including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, to maintain the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller or any such other AffiliateAffiliate (except as otherwise required under GAAP, applicable tax law or as required herein). Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 9(b)(ii) of the Credit and Security AgreementAgreement (provided, however, that the Seller does not hereby guaranty the solvency of the Buyer, agree to pay any of the Buyer’s obligations, or provide any guaranty or indemnity with respect to liabilities of the Buyer resulting from the performance or non-performance of the Portfolio Assets);
(ii) the Seller shall maintain corporate records and books of account separate from those of the Buyer;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way, other than by virtue of the Buyer being included in the consolidated financial statements of the Seller and any related disclosures as is necessary or appropriate under GAAP or applicable federal securities laws and regulations, that the assets of the Buyer, including including, without limitation, the Transferred Assets, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement herein shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–-length relationship with the Buyer and will not hold itself out as being liable for the debts of the Buyer;
(vi) except as permitted by the Credit Agreement, the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; and;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s its creditors, that the assets of the Buyer are available to pay the obligations and debts of the Seller (it being understood that the Buyer may be consolidated with the Seller as is necessary or appropriate under GAAP and included in the Seller’s consolidated financial statements as contemplated above); and
(viii) to the extent that the Seller manages the Portfolio Assets and performs other services on the Buyer’s behalf, it will clearly identify itself as an agent for the Buyer in the performance of such duties, provided, however, that the Seller will not be required to so identify itself when communicating with obligors not in its capacity as agent for the Buyer but rather in its capacity as agent for a group of lenders.
Appears in 1 contract
Samples: Loan Sale and Contribution Agreement (Apollo Debt Solutions BDC)
Separate Identity. The Seller Transferor acknowledges that the Administrative Agent, the Collateral Agent, the Administrative AgentCollateral Custodian, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Loan and Servicing Agreement and the Credit and Security Agreement other Transaction Documents in reliance upon the BuyerPurchaser’s identity as a legal entity that is separate from the Seller Transferor and each other Affiliate of the SellerTransferor. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller Transferor will take all reasonable stepssteps including, including without limitation, all steps that the BuyerAdministrative Agent, the Collateral Agent Agent, the Lenders or the Administrative Agent other Secured Parties may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal entity that is separate from the Seller Transferor and each other Affiliate of the Seller Transferor and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller Transferor and each other Affiliate thereof and not just a division of the Seller Transferor or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller Transferor agrees that:
(i) the Seller Transferor will take all other actions necessary on its part to ensure that the Buyer Purchaser is at all times in compliance with the criteria and the restrictions set forth in Section 5.05 4 of the Credit Borrower LLC Agreement and Security Sections 5.01(a), 5.01(b), 5.02(a) and 5.02(b) of the Loan and Servicing Agreement;
(ii) the Seller Transferor shall maintain corporate its financial records and books of account separate from those of the BuyerPurchaser;
(iii) the annual financial statements of the Seller Transferor shall disclose the effects of the SellerTransferor’s transactions in accordance with GAAP and the annual Transferor and the Purchaser shall maintain separate financial statements, except to the extent that the Purchaser’s financial and operating results are consolidated under GAAP with those of the Transferor in consolidated financial statements; provided that appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Seller shall note Purchaser from the Transferor and to indicate that the Purchaser’s assets of the Buyer, including the Transferred Assets, and credit are not available to pay creditors satisfy the debts and other obligations of the Seller Transferor or any other Affiliate of the SellerPerson;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller Transferor as official records;
(v) the Seller Transferor shall maintain an arm’s–-length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(vi) the Seller Transferor shall keep its assets and its liabilities wholly separate from those of the Buyer; andPurchaser;
(vii) the Seller Transferor will avoid the appearance, and promptly correct any known misperception of any of the SellerTransferor’s creditors, that the assets of the Buyer Purchaser are available to pay the obligations and debts of the SellerTransferor; and
(viii) to the extent that the Transferor services the Loan Assets and performs other services on the Purchaser’s behalf, the Transferor will clearly identify itself as an agent of the Purchaser in the performance of such duties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Apollo Debt Solutions BDC)
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative AgentTrustee, the Lenders Note Purchaser and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Amended and Restated Sale and Servicing Agreement and the Credit and Security Agreement other Transaction Documents in reliance upon the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the BuyerAgent, the Collateral Agent or Trustee, the Administrative Agent Note Purchaser and the other Secured Parties may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than for tax purposes) and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer Purchaser is at all times in compliance with the criteria and the restrictions set forth in Section 5.05 9(j) of the Credit limited liability company operating agreement of the Purchaser and Security Sections 5.01(a), 5.01(b), 5.02(a) and 5.02(b) of the Amended and Restated Sale and Servicing Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the BuyerPurchaser;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the BuyerPurchaser, including including, without limitation, the Transferred AssetsSale Portfolio, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–—length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the BuyerPurchaser; and
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer Purchaser are available to pay the obligations and debts of the Seller.
Appears in 1 contract
Samples: Second Tier Purchase and Sale Agreement (Ares Capital Corp)
Separate Identity. The Seller acknowledges that the Administrative Agent, the Collateral Agent, the Administrative AgentCollateral Custodian, the Lenders Lenders, the Lender Agents and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Loan and Servicing Agreement and the Credit and Security Agreement other Transaction Documents in reliance upon the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the Buyer, the Collateral Administrative Agent or the Administrative Collateral Agent may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than for tax purposes) and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part shall use commercially reasonable efforts to ensure that the Buyer Purchaser is at all times in compliance with Section 5.05 with, and shall take no action which would cause the Purchaser to fail to be in compliance with, the criteria and the restrictions set forth in the incorporation documents of the Credit Purchaser and Security Sections 5.01(a), 5.01(b), 5.02(a) and 5.02(b) of the Loan and Servicing Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the BuyerPurchaser;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the BuyerPurchaser, including including, without limitation, the Transferred AssetsSale Portfolio, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–—length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; andPurchaser;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer Purchaser are available to pay the obligations and debts of the Seller; and
(viii) to the extent that the Seller services the Loans and performs other services on the Purchaser’s behalf, the Seller will clearly identify itself as an agent of the Purchaser (and not in any other capacity) in the performance of such duties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (FS Energy & Power Fund)
Separate Identity. The Seller acknowledges that the Collateral Administrative Agent, the Administrative Collateral Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Credit Agreement and the Credit and Security Agreement other Facility Documents in reliance upon the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the Buyer, the Collateral Administrative Agent or the Administrative Collateral Agent may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than for tax or accounting purposes) and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer Purchaser is at all times in compliance with the criteria and the restrictions set forth in the Constituent Documents of the Purchaser and Section 5.05 of the Credit and Security Agreement; provided that, for the avoidance of doubt, the Seller shall not be required to expend any of its own funds to cause the Purchaser to be in compliance with Section 5.05(p) of the Credit Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the BuyerPurchaser;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the BuyerPurchaser, including including, without limitation, the Transferred AssetsSale Portfolio, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; andPurchaser;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer Purchaser are available to pay the obligations and debts of the Seller; and
(viii) to the extent that the Seller services the Loan Assets and performs other services on the Purchaser’s behalf, the Seller will clearly identify itself as an agent of the Purchaser in the performance of such duties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Golub Capital BDC 4, Inc.)
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit and Security Agreement in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller -21- and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable steps, including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, to maintain the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller or any such other AffiliateAffiliate (except as otherwise required under GAAP or applicable tax law). Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 5.18 of the Credit and Security AgreementAgreement (provided, however, that the Seller does not hereby guaranty the solvency of the Buyer);
(ii) the Seller shall maintain corporate records and books of account separate from those of the Buyer;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the Buyer, including including, without limitation, the Transferred AssetsCollateral, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–length relationship with the Buyer and will not hold itself out as being liable for the debts of the Buyer;
(viv) except as otherwise permitted under the Credit Agreement, the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer or, other than by reason of owning equity interests of the Buyer; and, for any decisions or actions relating to the Buyer;
(viivi) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer are available to pay the obligations and debts of the Seller;
(vii) to the extent that the Seller services the Collateral Loans and performs other services on the Buyer’s behalf, the Seller will clearly identify itself as an agent for the Buyer in the performance of such duties; provided, however, that the Seller will not be required to so identify itself when communicating with the Obligors not in its capacity as agent for the Buyer but rather in its capacity as agent for a group of lenders; and
(viii) the Seller shall take or refrain from taking, as applicable, each of the activities specified or assumed in the true sale and non-consolidation opinions of Dechert LLP delivered on the Closing Date, upon which the conclusions expressed therein are based.
Appears in 1 contract
Samples: Loan Sale and Contribution Agreement (Fifth Street Senior Floating Rate Corp.)
Separate Identity. The Seller acknowledges that the Administrative Agent, the Collateral Agent, the Administrative AgentCollateral Custodian, the Lenders Lenders, the Lender Agents and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Loan and Servicing Agreement and the Credit and Security Agreement other Transaction Documents in reliance upon the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the Buyer, the Collateral Administrative Agent or the Administrative Collateral Agent may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than for tax or accounting purposes) and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer Purchaser is at all times in compliance with the criteria and the restrictions set forth in Section 5.05 1.8 of the Credit limited liability company operating agreement of the Purchaser and Security Sections 5.01(a), 5.01(b), 5.02(a) and 5.02(b) of the Loan and Servicing Agreement; provided that, for the avoidance of doubt, the Seller shall not be required to expend any of its own funds to cause the Purchaser to be in compliance with subsection 5.01(b)(xvii) or subsection 5.02(a)(v) of the Loan and Servicing Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the BuyerPurchaser;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the BuyerPurchaser, including including, without limitation, the Transferred AssetsSale Portfolio, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; andPurchaser;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer Purchaser are available to pay the obligations and debts of the Seller; and
(viii) to the extent that the Seller services the Loan Assets and performs other services on the Purchaser’s behalf, the Seller will clearly identify itself as an agent of the Purchaser in the performance of such duties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Golub Capital Investment Corp)
Separate Identity. The Seller acknowledges that the Administrative Agent, the Collateral Agent, the Administrative AgentCollateral Custodian, the Lenders Lenders, the Lender Agents and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Loan and Servicing Agreement and the Credit and Security Agreement other Transaction Documents in reliance upon the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the Buyer, the Collateral Administrative Agent or the Administrative Collateral Agent may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than for tax or accounting purposes) and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer Purchaser is at all times in compliance with the criteria and the restrictions set forth in Section 5.05 9(j) of the Credit limited liability company operating agreement of the Purchaser and Security Sections 5.01(a), 5.01(b), 5.02(a) and 5.02(b) of the Loan and Servicing Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the BuyerPurchaser;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the BuyerPurchaser, including including, without limitation, the Transferred AssetsSale Portfolio, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; andPurchaser;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer Purchaser are available to pay the obligations and debts of the Seller; and
(viii) to the extent that the Seller services the Loan Assets and performs other services on the Purchaser’s behalf, the Seller will clearly identify itself as an agent of the Purchaser in the performance of such duties.
Appears in 1 contract
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative Agent, the Lenders Trustee, each Purchaser Agent, the Purchasers and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Sale and Servicing Agreement and the Credit and Security Agreement other Transaction Documents in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the BuyerAdministrative Agent, the Collateral Agent or Trustee, each Purchaser Agent, the Administrative Agent Purchasers and the other Secured Parties may from time to time reasonably request, request to maintain the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with the criteria and the restrictions set forth in Section 5.05 4.1(u) of the Credit Sale and Security Servicing Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the Buyer;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the Buyer, including including, without limitation, the Transferred AssetsPurchased Collateral and Contributed Collateral, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–-length relationship with the Buyer and will not hold itself out as being liable for the debts of the Buyer;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; and;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer are available to pay the obligations and debts of the Seller; and
(viii) to the extent that the Seller services the Loans and performs other services on the Buyer’s behalf, the Seller will clearly identify itself as an agent for the Buyer in the performance of such duties; provided, however, that the Seller will not be required to so identify itself when communicating with the Obligors.
Appears in 1 contract
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit and Security Agreement in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreementhereof, the Seller will take all reasonable steps, including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, to maintain the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller or any such other AffiliateAffiliate (except as otherwise required under GAAP, applicable tax law or as required herein). Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 of the Credit and Security AgreementAgreement (provided, however, that the Seller does not hereby guaranty the solvency of the Buyer, agree to pay any of the Buyer’s obligations, or provide any guaranty or indemnity with respect to liabilities of the Buyer resulting from the performance or non-performance of the Collateral Loans);
(ii) the Seller shall maintain corporate records and books of account separate from those of the Buyer;
(iii) the annual financial statements of the Seller (if any) shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way, other than by virtue of the Buyer being included in the consolidated financial statements of the Seller and any related disclosures as is necessary or appropriate under GAAP or applicable federal securities laws and regulations, that the assets of the Buyer, including including, without limitation, the Transferred Assets, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement herein shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–-length relationship with the Buyer and will not hold itself out as being liable for the debts of the Buyer;
(vi) except as permitted by the Credit Agreement, the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; and;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s its creditors, that the assets of the Buyer are available to pay the obligations and debts of the Seller (it being understood that the Buyer may be consolidated with the Seller as is necessary or appropriate under GAAP and included in the Seller’s consolidated financial statements as contemplated above); and
(viii) to the extent that the Seller manages the Collateral Loans and performs other services on the Buyer’s behalf, it will clearly identify itself as an agent for the Buyer in the performance of such duties, provided, however, that the Seller will not be required to so identify itself when communicating with obligors not in its capacity as agent for the Buyer but rather in its capacity as agent for a group of lenders.
Appears in 1 contract
Samples: Loan Sale and Contribution Agreement (OFS Capital Corp)
Separate Identity. The Seller acknowledges that the Collateral Facility Agent, the Administrative Agent, the Senior Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit and Security Agreement in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreementhereof, the Seller will take all reasonable steps, including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, to maintain the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller or any such other AffiliateAffiliate (except as otherwise required under GAAP or applicable tax law). Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 5.16 of the Credit and Security AgreementAgreement (provided, however, that the Seller does not hereby guaranty the solvency of the Buyer or agree to pay any of the Buyer’s obligations or liabilities);
(ii) the Seller shall maintain corporate records and books of account separate from those of the Buyer;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the Buyer, including including, without limitation, the Transferred AssetsCollateral, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–-length relationship with the Buyer and will not hold itself out as being liable for the debts of the Buyer;
(vi) except as otherwise permitted under the Credit Agreement, the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer or, other than by reason of owning equity interests of the Buyer; and, for any decisions or actions relating to the Buyer;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer are available to pay the obligations and debts of the Seller;
(viii) to the extent that the Seller services the Collateral and performs other services on the Buyer’s behalf, the Seller will clearly identify itself as an agent for the Buyer in the performance of such duties; provided, however, that the Seller will not be required to so identify itself when communicating with the Obligors not in its capacity as agent for the Buyer but rather in its capacity as agent for a group of lenders; and
(ix) the Seller shall take or refrain from taking, as applicable, each of the activities specified or assumed in the true sale and non-consolidation opinions of Dechert LLP delivered on the Closing Date, upon which the conclusions expressed therein are based.
Appears in 1 contract
Samples: Master Loan Sale and Contribution Agreement (AB Private Credit Investors Corp)
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit and Security Agreement in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. Accordingly, from and after the date of execution and delivery of this Agreement, the Seller will Transferor shall take all reasonable steps, including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, actions required to maintain the BuyerTransferee’s identity status as a separate legal entity that is separate from entity, including (i) not holding the Seller and each other Affiliate of the Seller and to make it manifest Transferee out to third parties that the Buyer is as other than an entity with assets and liabilities distinct from those the Transferor and the Transferor’s subsidiaries, (ii) not holding itself out to be responsible for the Indebtedness of the Seller and each Transferee or, other Affiliate thereof and not just a division than by reason of owning common membership interests in the Seller Transferee, for any decisions or any actions relating to the Transferee, (iii) taking such other Affiliateactions as are necessary on its part to ensure that all procedures required by its certificate of incorporation and by-laws and the Transferee’s certificate of formation and limited liability company agreement are duly and validly taken, (iv) keeping correct and complete records and books of account and minutes and (v) not acting in any manner that could foreseeably mislead others with respect to the Transferee’s separate identity. Without limiting the generality of the foregoing and in In addition to the other covenants set forth hereinforegoing, the Seller agrees Transferor and the Transferee shall take such actions as shall be required in order that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 of the Credit and Security Agreement;
(ii) the Seller Transferor shall maintain corporate records and books of account separate from those of the BuyerTransferee;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note that the assets of the Buyer, including the Transferred Assets, are not available to pay creditors of the Seller or any other Affiliate of the Seller;
(ivii) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller Transferor as official records;
(viii) the Seller Transferor shall maintain an arm’s–-length relationship with the Buyer Transferee and will shall not hold itself out as being liable for the debts Indebtedness of the BuyerTransferee;
(viiv) the Seller Transferor shall keep its assets and its liabilities wholly separate from those of the BuyerTransferee;
(v) the Transferor shall not mislead third parties by conducting or appearing to conduct business on behalf of the Transferee or expressly or impliedly representing or suggesting that the Transferor is liable or responsible for the indebtedness of the Transferee or that the assets of the Transferor are available to pay the creditors of the Transferee;
(vi) the Transferor shall at all times limit its transactions with the Transferee only to those expressly permitted under this Agreement or under any Transaction Document; and
(vii) the Seller will avoid the appearance, Transferor shall comply with (and promptly correct any known misperception of any cause to be true and correct) each of the Seller’s creditors, that facts and assumptions relating to the assets Transferor and the Transferee contained in the “no substantive consolidation” opinion of White & Case LLC delivered on the Buyer are available to pay the obligations and debts of the SellerClosing Date.
Appears in 1 contract
Samples: Sale and Contribution Agreement (CION Investment Corp)
Separate Identity. The Seller acknowledges that the Collateral Administrative Agent, the Administrative Collateral Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Credit Agreement and the Credit and Security Agreement other Facility Documents in reliance upon the BuyerPurchaser’s identity as a legal an entity that is being separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the Buyer, Administrative Agent and the Collateral Agent or the Administrative Agent may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal an entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than for tax purposes) and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer Purchaser is at all times in compliance with the criteria and the restrictions set forth in Section 9(j) of the amended and restated limited liability company agreement of the Purchaser and Sections 5.01(k), 5.04(d) and 5.05 of the Credit and Security Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the BuyerPurchaser;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the BuyerPurchaser, including the Transferred Assetsincluding, are not without limitation, any Sale Portfolio, could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the BuyerPurchaser; and
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer Purchaser are available to pay the obligations and debts of the Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Morgan Stanley Direct Lending Fund)
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative Facility Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit and Security Agreement in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this AgreementOriginal Closing Date, the Seller has and will take all reasonable steps, including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, to maintain the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller or any such other AffiliateAffiliate (except as otherwise required under GAAP or applicable tax law). Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 5.03 of the Credit and Security AgreementAgreement (provided, however, that the Seller does not hereby guaranty the solvency of the Buyer or agree to pay any of the Buyer’s obligations or liabilities);
(ii) the Seller shall maintain corporate records and books of account separate from those of the Buyer;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the Buyer, including including, without limitation, the Transferred AssetsCollateral, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–length relationship with the Buyer and will not hold itself out as being liable for the debts of the Buyer;
(vi) except as otherwise permitted under the Credit Agreement, the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; and;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer are available to pay the obligations and debts of the Seller; and
(viii) to the extent that the Seller services the Collateral and performs other services on the Buyer’s behalf, the Seller will clearly identify itself as an agent for the Buyer in the performance of such duties; provided, however, that the Seller will not be required to so identify itself when communicating with the Obligors not in its capacity as agent for the Buyer but rather in its capacity as agent for a group of lenders.
Appears in 1 contract
Samples: Loan Sale and Contribution Agreement (WhiteHorse Finance, Inc.)
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this the Loan and Security Agreement and the Credit and Security Agreement other Transaction Documents in reliance upon the Buyer’s identity as a legal entity that is separate and distinct from the Seller and each other Affiliate of the Seller. Accordingly, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable steps, including all steps that the Buyer, the Collateral Agent Buyer or the Administrative Agent may from time to time reasonably request, to maintain the Buyer’s identity as a legal entity that is separate and distinct from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 4.1(t) of the Credit Loan and Security Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the Buyer;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note that the assets of the Buyer, including the Transferred Assets, are not available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(viv) the Seller shall maintain an arm’s–length relationship with the Buyer and will not hold itself out as being liable for the debts of the Buyer;
(viv) the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; and
(viivi) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer are available to pay the obligations and debts of the Seller.
Appears in 1 contract
Samples: Sale and Contribution Agreement (First Eagle Credit Opportunities Fund)
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit and Security Agreement in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. Accordingly, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable steps, including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, to maintain the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 of the Credit and Security Agreement;
(ii) the Seller The Originator shall maintain corporate records and books of account separate from those of the Buyer;.
(iiiii) the annual The financial statements of the Seller Originator shall disclose the effects of the SellerOriginator’s transactions in accordance with GAAP and, in addition, disclose that (A) the Buyer’s sole business consists of the purchase or acceptance through capital contribution of the Transferred Receivables from the Originators and the annual financial statements subsequent resale of interests in the Transferred Receivables to the Purchasers, (B) the Buyer is a legal entity separate from the Originator with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the Seller shall note that Buyer’s assets, prior to any value in the Buyer becoming available to such entities’ equity holders and (C) the assets of the Buyer, including the Transferred Assets, Buyer are not available to pay creditors of the Seller Originator or any other Affiliate of the Seller;
(iv) the its Affiliates. The resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller Originator as official records;.
(viii) the Seller shall maintain an arm’s–length relationship with the Buyer and will not hold itself out as being liable for the debts of the Buyer;
(vi) the Seller The Originator shall keep its assets and its liabilities wholly separate from those of the Buyer; andBuyer except as permitted or contemplated by this Agreement and the related Facility Documents.
(viiiv) The Originator shall conduct its business solely in its own name through its duly authorized officers or agents and in a manner designed not to mislead third parties as to the Seller will avoid the appearance, and promptly correct any known misperception of any separate identity of the Seller’s creditors, Buyer.
(v) The Originator shall maintain an arm’s-length relationship with the Buyer and shall not mislead third parties by conducting or appearing to conduct business on behalf of the Buyer or expressly or implicitly representing or suggesting that the Originator is liable or responsible for the indebtedness of the Buyer or that the assets of the Buyer Originator are available to pay the obligations and debts creditors of the SellerBuyer.
(vi) The Originator shall cause operating expenses and liabilities of the Buyer to be paid from the Buyer’s own funds other than as provided in Section 6.14 hereof.
(vii) The Originator shall at all times have stationery and other business forms and a mailing address separate from those of the Buyer.
(viii) The Originator shall at all times limit its transactions with the Buyer only to those expressly contemplated or permitted hereunder or under any other Facility Document.
(ix) The Originator shall comply with (and cause to be true and correct) each of the facts and assumptions contained in the bankruptcy opinions of Skadden, Arps, Xxxxxxx & Xxxx LLP delivered pursuant to the Schedule of Documents.
Appears in 1 contract
Samples: Receivables Sale and Contribution Agreement (Acco Brands Corp)
Separate Identity. The Seller acknowledges that the Administrative Agent, the Collateral Agent, the Administrative AgentCollateral Custodian, the Lenders Lenders, the Lender Agents and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Loan and Servicing Agreement and the Credit and Security Agreement other Transaction Documents in reliance upon the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the Buyer, the Collateral Administrative Agent or the Administrative Collateral Agent may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than for tax purposes) and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part shall use commercially reasonable efforts to ensure that the Buyer Purchaser is at all times in compliance with Section 5.05 with, and shall take no action which would cause the Purchaser to fail to be in compliance with, the criteria and the restrictions set forth in the incorporation documents of the Credit Purchaser and Security Sections 5.01(a), 5.01(b), 5.02(a) and 5.02(b) of the Loan and Servicing Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the BuyerPurchaser;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the BuyerPurchaser, including including, without limitation, the Transferred AssetsSale Portfolio, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; andPurchaser;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer Purchaser are available to pay the obligations and debts of the Seller; and
(viii) to the extent that the Seller services the Loans and performs other services on the Purchaser’s behalf, the Seller will clearly identify itself as an agent of the Purchaser (and not in any other capacity) in the performance of such duties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (FS Investment Corp II)
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit and Security Agreement in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable steps, including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, to maintain the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller or any such other AffiliateAffiliate (except as otherwise required under GAAP or applicable tax law). Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 5.18 of the Credit and Security AgreementAgreement (provided, however, that the Seller does not hereby guaranty the solvency of the Buyer);
(ii) the Seller shall maintain corporate records and books of account separate from those of the Buyer;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the Buyer, including including, without limitation, the Transferred AssetsCollateral, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–length relationship with the Buyer and will not hold itself out as being liable for the debts of the Buyer;
(viv) except as otherwise permitted under the Credit Agreement, the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer or, other than by reason of owning equity interests of the Buyer; and, for any decisions or actions relating to the Buyer;
(viivi) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer are available to pay the obligations and debts of the Seller;
(vii) to the extent that the Seller services the Collateral Loans and performs other services on the Buyer’s behalf, the Seller will clearly identify itself as an agent for the Buyer in the performance of such duties; provided, however, that the Seller will not be required to so identify itself when communicating with the Obligors not in its capacity as agent for the Buyer but rather in its capacity as agent for a group of lenders; and
(viii) the Seller shall take or refrain from taking, as applicable, each of the activities specified or assumed in the true sale and non-consolidation opinions of Dechert LLP delivered on November 1, 2013, upon which the conclusions expressed therein are based.
Appears in 1 contract
Samples: Loan Sale and Contribution Agreement (Fifth Street Senior Floating Rate Corp.)
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and Agreement, the Revolving Credit and Security Agreement and the other Facility Documents in reliance upon the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable steps, steps including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than for tax or accounting purposes) and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer Purchaser is at all times in compliance with the criteria and the restrictions set forth in Section 5.05 1.7 of the Credit and Security Agreementlimited liability company agreement of the Purchaser;
(ii) the Seller shall maintain corporate records and its records, books of account and bank accounts separate and apart from those of the BuyerPurchaser;
(iii) the annual Seller shall maintain separate financial statements statements, showing its assets and liabilities separate and apart from those of the Seller Purchaser and shall disclose not have its assets listed on any financial statement of the effects Purchaser; provided, however, that the Purchaser’s assets may be included in a consolidated financial statement of the Seller’s transactions in accordance with GAAP and the annual ; provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Purchaser from the Seller shall note and to indicate that the Purchaser’s assets of the Buyer, including the Transferred Assets, and credit are not available to pay creditors satisfy the debts and other obligations of the Seller or any other Affiliate of Purchaser and (ii) such assets shall also be listed on the SellerPurchaser’s own separate balance sheet;
(iv) except as expressly permitted in the resolutionsRevolving Credit and Security Agreement and this Agreement, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(v) the Seller shall hold itself out to the public as a legal entity separate and distinct from the Purchaser and conduct its business solely in its own name in order not (i) to mislead others as to the identity of the Purchaser, or (ii) to suggest that it is responsible for the debts of the Purchaser;
(vi) except as permitted by the Facility Documents, the Seller shall keep not commingle its assets and its liabilities wholly separate from those with the assets of the BuyerPurchaser; and
(vii) to the extent that the Seller or an Affiliate of Seller services the Loan Assets and performs other services on the Purchaser’s behalf, the Seller will avoid the appearance, and promptly correct any known misperception of any clearly identify itself or such Affiliate as an agent of the Seller’s creditors, that Purchaser in the assets performance of the Buyer are available to pay the obligations and debts of the Sellersuch duties.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Capitala Finance Corp.)
Separate Identity. The Seller acknowledges that the Collateral Administrative Agent, each Purchaser Agent, the Administrative Agent, the Lenders Purchasers and the other Secured Parties are entering into the transactions contemplated by this Agreement the Sale and the Credit and Security Servicing Agreement in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Sellerany Affiliates thereof. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the BuyerAdministrative Agent, each Purchaser Agent, the Collateral Agent or Purchasers and the Administrative Agent other Secured Parties may from time to time reasonably request, request to maintain the Buyer’s identity as a separate legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate any Affiliates thereof and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 4.1(u) of the Credit Sale and Security Servicing Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the Buyer;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the Buyer, including including, without limitation, the Transferred AssetsPurchased Collateral, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–length relationship with the Buyer and will not hold itself out as being liable for the debts of the Buyer;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; and;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer are available to pay the obligations and debts of the Seller; and
(viii) to the extent that the Seller services the Assets and performs other services on the Buyer’s behalf, the Seller will clearly identify itself as an agent for the Buyer in the performance of such duties; provided that the Seller will not be required to so identify itself when communicating with the Obligors.
Appears in 1 contract
Samples: Sale and Contribution Agreement (Capitalsource Inc)
Separate Identity. The Seller acknowledges that the Administrative Agent, the Collateral Agent, the Administrative AgentCollateral Custodian, the Lenders Lenders, the Lender Agents and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Loan and Servicing Agreement and the Credit and Security Agreement other Transaction Documents in reliance upon the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable stepssteps including, including without limitation, all steps that the Buyer, the Collateral Administrative Agent or the Administrative Collateral Agent may from time to time reasonably request, request to maintain the BuyerPurchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than for tax purposes) and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer Purchaser is at all times in compliance with the criteria and the restrictions set forth in Section 5.05 8(d) of the Credit limited liability company agreement of the Purchaser and Security Sections 5.01(a), 5.01(b), 5.02(a) and 5.02(b) of the Loan and Servicing Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the BuyerPurchaser;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the BuyerPurchaser, including including, without limitation, the Transferred AssetsSale Portfolio, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–length relationship with the Buyer Purchaser and will not hold itself out as being liable for the debts of the BuyerPurchaser;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; andPurchaser;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer Purchaser are available to pay the obligations and debts of the Seller; and
(viii) to the extent that the Seller services the Loan Assets and performs other services on the Purchaser’s behalf, the Seller will clearly identify itself as an agent of the Purchaser in the performance of such duties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Business Development Corp of America)
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit Loan and Security Agreement in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. Accordingly, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable steps, including all steps that the Buyer, the Collateral Agent Buyer or the Administrative Agent may from time to time reasonably request, to maintain the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 4.1(t) of the Credit Loan and Security Agreement;
(ii) the Seller shall maintain corporate records and books of account separate from those of the Buyer;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note that the assets of the Buyer, including the Transferred Assets, are not available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–length relationship with the Buyer and will not hold itself out as being liable for the debts of the Buyer;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; and
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer are available to pay the obligations and debts of the Seller.
Appears in 1 contract
Samples: Sale and Contribution Agreement (Investcorp Credit Management BDC, Inc.)
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative Facility Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit and Security Agreement in reliance upon the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable steps, including all steps that the Buyer, the Collateral Agent or the Administrative Agent may from time to time reasonably request, to maintain the Buyer’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller or any such other AffiliateAffiliate (except as otherwise required under GAAP or applicable tax law). Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance with Section 5.05 5.03 of the Credit and Security AgreementAgreement (provided, however, that the Seller does not hereby guaranty the solvency of the Buyer or agree to pay any of the Buyer’s obligations or liabilities);
(ii) the Seller shall maintain corporate records and books of account separate from those of the Buyer;
(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall note not reflect in any way that the assets of the Buyer, including including, without limitation, the Transferred AssetsCollateral, are not could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–length relationship with the Buyer and will not hold itself out as being liable for the debts of the Buyer;
(vi) except as otherwise permitted under the Credit Agreement, the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; and;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer are available to pay the obligations and debts of the Seller; and
(viii) to the extent that the Seller services the Collateral and performs other services on the Buyer’s behalf, the Seller will clearly identify itself as an agent for the Buyer in the performance of such duties; provided, however, that the Seller will not be required to so identify itself when communicating with the Obligors not in its capacity as agent for the Buyer but rather in its capacity as agent for a group of lenders.
Appears in 1 contract
Samples: Loan Sale and Contribution Agreement (WhiteHorse Finance, LLC)
