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
Sources: 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 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 3 contracts
Sources: Master Purchase and Sale Agreement (Ares Capital Corp), Master Purchase and Sale Agreement (Ares Strategic Income Fund), Master Purchase and Sale Agreement (Ares Capital 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 3 contracts
Sources: Loan Sale and Contribution Agreement (Monroe Capital Income Plus Corp), 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. 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
Sources: 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 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 & ▇▇▇▇▇▇ LLP, dated as of the date hereof, upon which the conclusions expressed therein are based.
Appears in 2 contracts
Sources: Sale and Participation Agreement (American Capital, LTD), Sale Agreement (American Capital Senior Floating, Ltd.)
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
Sources: Omnibus Amendment (Ares Capital Corp), 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 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 Class A-1A 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 2 contracts
Sources: Master Purchase and Sale Agreement (Ares Strategic Income Fund), Master Purchase and Sale Agreement (Ares Strategic Income Fund)
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
Sources: Omnibus Amendment (Ares Capital Corp), Second Tier 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 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
Sources: Purchase and Contribution Agreement (Capitala Finance Corp.)
Separate Identity. The Seller acknowledges that the Collateral Agent, the Administrative AgentLead Lender, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit and Security Facility 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 4.1(v) of the Credit and Security AgreementFacility Agreement (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 limited partnership 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 Facility 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
Sources: Purchase and Sale Agreement (AB Private Credit Investors Corp)
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 & ▇▇▇▇▇▇ LLP, dated as of the date hereof, upon which the conclusions expressed therein are based.
Appears in 1 contract
Sources: Contribution and Master Participation Agreement (American Capital, 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 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
Sources: 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 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 in connection with transactions contemplated by the Credit Agreement, upon which the conclusions expressed therein are based.
Appears in 1 contract
Sources: Master Loan Sale and Contribution Agreement (AB Private Credit Investors Corp)
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
Sources: Master 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
Sources: Purchase and Sale Agreement (Pennantpark Investment 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
Sources: Loan Sale and Contribution Agreement (Apollo Debt Solutions BDC)
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
Sources: Sale and Contribution Agreement (Capitalsource 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 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; provided that the Borrower may be consolidated into the Seller solely for tax and accounting purposes;
(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) the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer; and, provided that the Borrower may be consolidated into the Seller solely for tax and accounting purposes;
(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);
(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; and
(ix) the Seller shall take all actions necessary to maintain the accuracy of the factual assumptions in all material respects set forth in the non-consolidation and true sale opinion of Dechert LLP, except to the extent that any such change in assumptions would not reasonably be expected to result in a reputable and nationally recognized counsel no longer to be able to render such non-consolidation and true sale opinion.
Appears in 1 contract
Sources: Loan Sale and Contribution Agreement (Overland Advantage)
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
Sources: Master Loan Sale and Contribution Agreement (AB Private Credit Investors 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
Sources: Sale and Contribution Agreement (Capitalsource Inc)
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
Sources: 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. 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
Sources: 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 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
Sources: Purchase and Sale Agreement (Fifth Street Finance Corp)
Separate Identity. The Seller acknowledges that the Administrative Agent, the Collateral Agent, the Administrative AgentCustodian, 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 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 such 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 and not just a division of the Seller or any such other AffiliateAffiliate (other than for tax or accounting purposes). Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:
(i) the The Seller will take all other actions reasonably necessary on its part to ensure that the Buyer Purchaser is at all times in material 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 5.2, 5.7, 5.10, 5.13 and 5.18 of the Credit 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 5.2 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 or IFRS, as applicable, and the annual financial statements of the Seller shall note disclose that the assets Loan Assets are owned by a special purpose entity that is consolidated in the financial statements of the BuyerSeller, including and the Transferred Assets, creditors of that special purpose entity have received a security interests in such assets and such assets are not intended to be available to pay the creditors of the Seller (or any other Affiliate affiliate of the Seller);
(iv) the resolutions, agreements and other instruments underlying the transactions described in this Agreement required under Applicable Law to be maintained as official records 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 upon an Authorized Officer of the Seller becoming aware thereof, 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 manages 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
Sources: Purchase and Sale Agreement (Blue Owl Technology Finance Corp.)
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
Sources: Loan Sale and Contribution Agreement (OFS 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, 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 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 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
Sources: Sale and Contribution 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 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
Sources: Purchase and Sale Agreement (Morgan Stanley Direct Lending Fund)
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
Sources: 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 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
Sources: Second Tier 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 -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
Sources: 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 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
Sources: Purchase and Sale Agreement (Fifth Street Finance Corp)
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
Sources: Loan Sale and Contribution Agreement (WhiteHorse Finance, LLC)
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
Sources: 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
Sources: 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 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
Sources: Sale and Contribution Agreement (Investcorp Credit Management BDC, Inc.)
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
Sources: Sale and Contribution Agreement (Capitalsource Inc)