Special Purpose Entity. The Seller has not and shall not: (1) engage in any business or activity other than the purchase and receipt of Assets and related assets from the Originator under the Sale Agreement, the sale of Assets under the Transaction Documents, and such other activities as are incidental thereto; (2) acquire or own any material assets other than (a) the Assets and related assets from the Originator under the Sale Agreement and (b) incidental property as may be necessary for the operation of the Seller; (3) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case first obtaining the consent of the Administrative Agent and each Purchaser Agent; (4) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Agent, amend, modify, terminate or fail to comply with the provisions of its operating agreement, or fail to observe limited liability company formalities; (5) own any Subsidiary or make any investment in any Person without the consent of the Administrative Agent and each Purchaser Agent; (6) except as permitted by this Agreement and the Lock-Box Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person; (7) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness to the Secured Parties hereunder or in conjunction with a repayment of all Advances owed to the Purchaser, except for trade payables in the ordinary course of its business; provided, that, such debt is not evidenced by a note and is paid when due; (8) become insolvent or fail to pay its debts and liabilities from its assets as the same shall become due; (9) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person; (10) enter into any contract or agreement with any Person, except upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than such Person; (11) seek its dissolution or winding up in whole or in part; (12) fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator or any principal or Affiliate thereof or any other Person; (13) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person; (14) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securities); (15) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulations; (16) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity with which such other party is transacting business, or (b) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates); (17) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; (18) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors; (19) except as may be required by the Internal Revenue Code and regulations, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliates, (b) any Affiliate of a principal or (c) any other Person; (20) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, unless the Seller delivers to the Administrative Agent and each Purchaser Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer; (21) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person; (22) fail to pay its own liabilities and expenses only out of its own funds; (23) fail to pay the salaries of its own employees in light of its contemplated business operations; (24) acquire the obligations or securities of its Affiliates or stockholders; (25) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate; (26) fail to use separate invoices and checks bearing its own name; (27) pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness to the Secured Parties hereunder; (28) fail at any time to have at least one (1) independent director (an “Independent Director”) who is not and has not been for at least five (5) years a director, officer, employee, trade credit or shareholder (or spouse, parent, sibling or child of the foregoing) of (a) the Servicer, (b) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, or (e) any Affiliate of any principal of the Servicer; provided, however, such Independent Director may be an independent director of another special purpose entity affiliated with the Servicer or fail to ensure that all limited liability company action relating to the selection, maintenance or replacement of the Independent Director are duly authorized by the unanimous vote of the board of directors (including the Independent Director); (29) to provide that the unanimous consent of all directors (including the consent of the Independent Director) is required for the Seller to (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Seller, (e) make any assignment for the benefit of the Seller’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; and (30) take or refrain from taking, as applicable, each of the activities specified in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ LLP, dated as of the date hereof, upon which the conclusions expressed therein are based.
Appears in 1 contract
Sources: Loan Certificate and Servicing Agreement (Capitalsource Inc)
Special Purpose Entity. The Seller (a) Borrower has not since the date of its formation and shall will not:
(1i) engage in any business or activity other than the purchase ownership, operation and receipt maintenance of Assets and related assets from the Originator under the Sale Agreement, the sale of Assets under the Transaction DocumentsProperty, and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (aA) the Assets and related assets from the Originator under the Sale Agreement Property, and (bB) such incidental property Personal Property as may be necessary for the ownership, leasing, maintenance and operation of the SellerProperty;
(iii) incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) the Debt, (B) trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than sixty (60) days past the date incurred and paid on or prior to such date, (C) Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness described in (B) and (C) shall not exceed at any time two percent (2%) of the Outstanding Principal Balance; and/or (D) the C-PACE Loan. No Indebtedness other than the Debt and the C-PACE Loan may be secured (subordinate or pari passu) by the Property;
(iv) merge into or consolidate with any Person Person, or divide into two or more limited liability companies or other legal entities, dissolve, terminate or terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case first obtaining the consent of the Administrative Agent and each Purchaser Agent;
(4v) fail to observe all material organizational formalities, or fail to preserve its existence as an entity duly formed or organized, validly existing and in good standing (if applicable) under the laws applicable Legal Requirements of the jurisdiction of its organization or formation, or amend or, modify the provisions of its organizational documents without the prior written consent of the Administrative Agent and each Purchaser AgentLender, amend, modify, or terminate or fail to comply with the provisions of its operating agreement, or fail to observe limited liability company formalitiesorganizational documents;
(5vi) own any Subsidiary subsidiary, or make any investment in in, any Person without the consent of the Administrative Agent and each Purchaser AgentPerson;
(6vii) except as permitted by this Agreement and the Lock-Box Agreement, commingle its funds or assets with the funds or assets of any of its Affiliates, or of any other Person;
(7) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness to the Secured Parties hereunder or in conjunction with a repayment of all Advances owed to the Purchaser, except for trade payables in the ordinary course of its business; provided, that, such debt is not evidenced by a note and is paid when due;
(8) become insolvent or fail to pay its debts and liabilities from its assets as the same shall become due;
(9viii) fail to maintain all of its books, records, books of account financial statements and bank accounts separate and apart from those of any other Person (including, without limitation, any Affiliates). Borrower’s assets have not and will not be listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been and may be included in a consolidated financial statement of its Affiliates provided that (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (B) such assets shall be listed on Borrower’s own separate balance sheet. B▇▇▇▇▇▇▇ has maintained and will maintain its books, records, resolutions and agreements as official records;
(10ix) except for capital contributions or capital distributions permitted under the terms of its organizational documents and properly reflected on its books and records, enter into any transaction, contract or agreement with any Persongeneral partner, member, principal or Affiliate, except upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an armsarm’s-length basis with unaffiliated third parties other than such Personparties;
(11x) seek maintain its dissolution assets in such a manner that it will be costly or winding up in whole difficult to segregate, ascertain or in part;
(12) fail to correct any known misunderstandings regarding the separate identity identify its individual assets from those of Seller and the Originator or any principal or Affiliate thereof or any other Person;
(13xi) guaranteeassume or guaranty the debts of any other Person, become obligated for, or hold itself out to be responsible for the debt debts of another any other Person, or otherwise pledge its assets to secure the obligations of any other Person or hold out its credit as being available to satisfy the obligations of any other Person;
(14xii) make any loan loans or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securities)Person;
(15xiii) fail to file its own separate tax return, returns (unless Borrower is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under applicable law or file a consolidated federal income tax return with any other Person, except as may be required unless Borrower is prohibited by the Internal Revenue Code and regulationsapplicable Legal Requirements from doing so);
(16xiv) fail either to (A) hold itself out to the public and identify itself, in each case, as a legal entity separate and distinct from any other Person and not as a division or to part of any other Person, (B) conduct its business solely in its own name, (C) hold its assets in its own name in order not (a) to mislead others as to the identity with which such other party is transacting business, or (bD) to suggest that it is responsible for the debts of correct any third party (including any of known misunderstanding regarding its principals or Affiliates)separate identity;
(17xv) fail to intend to remain solvent or fail to intend to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations, provided, however, that the foregoing shall not be deemed to require any member or partner to make any capital contribution to Borrower;
(18xvi) file take any Material Action and shall not cause or consent to permit the filing of any petitionmembers, either voluntary partners or involuntary, managers to take advantage of any applicable insolvencyMaterial Action with respect to Borrower unless (A) there is at least one (1) Independent Director then serving at Borrower (or, bankruptcyif Borrower is not an Acceptable LLC, liquidation or reorganization statute, or make an assignment for then serving at the benefit of creditorsSPE Party) and (B) such Independent Director has consented in writing to such Material Action;
(19xvii) except as may be required by the Internal Revenue Code fail to allocate shared expenses (including, without limitation, shared office space) or fail to use separate stationery, invoices and regulations, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliates, (b) any Affiliate of a principal or (c) any other Personchecks;
(20) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, unless the Seller delivers to the Administrative Agent and each Purchaser Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person;
(22xviii) fail to pay its own liabilities and expenses only out of its own funds;
(23) fail to pay the including, without limitation, salaries of its own employees (if any)) from its own funds or fail to maintain a sufficient number of employees (if any) in light of its contemplated business operationsoperations (in each case to the extent there exists sufficient cash flow from the Property to do so), provided, however, that the foregoing shall not be deemed to require any direct or indirect member, partner or stockholder to make any capital contribution or other equity investment;
(24xix) acquire the obligations or securities of its Affiliates partners, members or stockholdersother Affiliates, as applicable;
(25xx) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliateidentify its partners, including paying for office space and services performed by any employee members or other Affiliates, as applicable, as a division or part of an Affiliateit;
(26xxi) fail to use separate invoices and checks bearing its own name;have any direct or indirect ownership interests in Borrower or the Property that include any Prohibited Entity/Ownership Structure; or
(27xxii) pledge have any of its obligations guaranteed by any Affiliate, except as contemplated by the Loan Documents.
(b) The provisions of this Section 5.1(b) shall apply only if Borrower is a partnership or limited liability company (other than an Acceptable LLC). Each general partner (in the case of a partnership) and at least one member (in the case of a limited liability company) of Borrower, as applicable, shall be an Acceptable LLC constituting an SPE Party, the sole asset of which is its interest in Borrower. Each such SPE Party (i) will at all times comply with each of the covenants, terms and provisions contained in Section 5.1(a) hereof (excluding paragraphs (i) - (iii) (inclusive) and paragraph (vi) thereof) and Section 5.1(c) and (d) hereof, as if such representation, warranty or covenant was made directly by such SPE Party; (ii) will not engage in any business or activity other than owning an interest in Borrower; (iii) will not acquire or own any assets for the benefit of other than its partnership or membership interest in Borrower; (iv) will at all times continue to own no less than a 0.5% direct equity ownership interest in Borrower; (v) will not incur any other debt, secured or unsecured, direct or contingent (including guaranteeing any obligation); (vi) will not own any subsidiary, or make any investment in, any Person, other than Borrower; and (vii) will cause Borrower to comply with respect to payment the provisions of the indebtedness to the Secured Parties hereunder;this Section 5.1.
(28) fail at any time to have at least one (1) independent director (an “Independent Director”) who is not and has not been for at least five (5) years a director, officer, employee, trade credit or shareholder (or spouse, parent, sibling or child of the foregoing) of (a) the Servicer, (b) the Seller, (c) The provisions of this Section 5.1(c) and Section 5.1(d) below shall apply only if Borrower or any principal SPE Party is an Acceptable LLC. The limited liability company agreement of such company (the “LLC Agreement”) shall provide that (i) upon the occurrence of any event that causes the last remaining member of such company (“Member”) to cease to be the member thereof (other than (A) upon an assignment by Member of all of its membership interest therein and the admission of the Servicertransferee as Member in accordance with the Loan Documents and the LLC Agreement, or (B) the resignation of Member and the admission of an additional member of such company in accordance with the terms of the Loan Documents and the LLC Agreement), a natural person who is then serving as Independent Director of such company shall, without any action of any other Person and simultaneously with the Member ceasing to be the member of such company automatically be admitted to such company as a member with a 0% economic interest (“Special Member”) and shall continue such company without dissolution and (ii) Special Member may not resign from such company or transfer its rights as Special Member unless a successor Special Member has been admitted to such company as a Special Member in accordance with requirements of Delaware law (as applicable) and the LLC Agreement, and after giving effect to such resignation or transfer, the requirements of Section 5.2 below (if any) are satisfied. The LLC Agreement shall further provide that (i) Special Member shall automatically cease to be a member of such company upon the admission to such company of the first substitute member, (ii) Special Member shall be a member of such company that has no interest in the profits, losses and capital of such company and has no right to receive any distributions of the assets of such company, (iii) pursuant to the applicable provisions of the limited liability company act of the State of Delaware (as applicable, the “Act”), Special Member shall not be required to make any capital contributions to such company and shall not receive a limited liability company interest in such company, (iv) Special Member, in its capacity as Special Member, may not bind such company and (v) except as required by any mandatory provision of the Act, Special Member, in its capacity as Special Member, shall have no right to vote on, approve or otherwise consent to any action by, or matter relating to, such company (including, without limitation, the division, merger, consolidation or conversion of such company) except as expressly required by Section 5.1(a)(xvi) and Section 5.2 hereof. Prior to its admission to such company as Special Member, Special Member shall not be a member of such company, but may serve as an Independent Director of such company.
(d) The provisions of Section 5.1(c) above and this Section 5.1(d) shall apply only if Borrower or any Affiliate SPE Party is an Acceptable LLC. The LLC Agreement shall further provide that (i) upon the occurrence of any event that causes the Member to cease to be a member of such company, to the fullest extent permitted by law, the personal representative of Member shall, within ninety (90) days after the occurrence of the Servicerevent that terminated the continued membership of Member in such company agree in writing (A) to continue such company, or and (eB) any Affiliate of any principal to the admission of the Servicer; provided, however, such Independent Director may be an independent director of another special purpose entity affiliated with the Servicer personal representative or fail to ensure that all limited liability company action relating to the selection, maintenance its nominee or replacement of the Independent Director are duly authorized by the unanimous vote of the board of directors (including the Independent Director);
(29) to provide that the unanimous consent of all directors (including the consent of the Independent Director) is required for the Seller to (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Seller, (e) make any assignment for the benefit of the Seller’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; and
(30) take or refrain from takingdesignee, as applicablethe case may be, each as a substitute member of the activities specified in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ LLP, dated such company effective as of the date hereofoccurrence of the event that terminated the continued membership of Member in such company, (ii) any action initiated by or brought against Member or Special Member under any Creditors’ Rights Laws shall not cause Member or Special Member to cease to be a member of such company and upon which the conclusions expressed therein are basedoccurrence of such an event, the business of such company shall continue without dissolution and (iii) each of Member and Special Member waives any right it might have to agree in writing to dissolve such company upon the occurrence of any action initiated by or brought against Member or Special Member under any Creditors’ Rights Laws, or the occurrence of an event that causes Member or Special Member to cease to be a member of such company.
Appears in 1 contract
Sources: Building Loan Agreement (ACRES Commercial Realty Corp.)
Special Purpose Entity. The Seller Borrower has not and shall not:
(1i) engage in any business or activity other than the purchase purchase, receipt and receipt management of Assets Collateral, the transfer and related assets from pledge of Collateral pursuant to the Originator under terms of the Sale AgreementTransaction Documents, the sale of Assets Collateral as permitted hereunder, the entry into and the performance under the Transaction Documents, Documents and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (a) the Assets and related assets from the Originator under the Sale Agreement and Collateral or (b) incidental property as may be necessary for the operation of the SellerBorrower and the performance of its obligations under the Transaction Documents;
(3iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure(other than in accordance with the provisions hereof), without in each case first obtaining the prior written consent of the Administrative Agent and each Purchaser Agent, or except as permitted by this Agreement, change its legal structure, or jurisdiction of formation;
(4iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Agent, amend, modify, terminate or fail to comply with the provisions of its operating agreementagreement except as otherwise permitted pursuant to Section 5.2(h), or fail to observe limited liability company organizational formalities;
(5v) form, acquire or own any Subsidiary Subsidiary, own any equity interest in any other entity (other than any Equity Security received in exchange for a defaulted Loan or portion thereof in connection with an insolvency, bankruptcy, reorganization, debt restructuring or workout of the Obligor thereof), or make any investment Investment in any Person (other than Permitted Investments) without the prior written consent of the Administrative Agent; provided that, if required or deemed advisable by the Fund in connection with the Fund’s maintenance of its status or eligibility to be taxed as a Regulated Investment Company (as determined by the Fund in its reasonable discretion), the Borrower may form a wholly owned Subsidiary and contribute to such Subsidiary any Equity Security or any other asset that is not an Eligible Loan, subject to the satisfaction of the following conditions (as determined by the Administrative Agent in its reasonable discretion): (A) such Subsidiary becomes jointly and each Purchaser Agentseverally liable for all obligations of the Borrower under this Agreement and (B) the Borrower has furnished to the Administrative Agent information and documentation reasonably requested by the Administrative Agent or any Lender for the purpose of compliance with “know your customer” laws, including the Beneficial Ownership Regulation, with respect to such Subsidiary;
(6vi) except as permitted by this Agreement and the Lock-Box Agreement, fail to hold all of its assets solely in its own name;
(vii) commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7viii) incur any debtIndebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness Indebtedness to the Secured Parties hereunder or in conjunction with a repayment of all Loan Advances owed to the Purchaser, except for trade payables in Lenders and a termination of all the ordinary course of its business; provided, that, such debt is not evidenced by a note and is paid when dueCommitments;
(8) become insolvent or ix) fail to pay its debts and liabilities solely from its own assets as the same shall become due;
(9x) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10xi) enter into any contract or agreement with any Person, including the Transaction Documents, Underlying Instruments, purchase, sale or transfer agreements related to Collateral, and agreements incidental thereto, except in the ordinary course of business and upon terms and conditions that are commercially reasonable and reasonable, intrinsically fair and substantially similar to those that would be available on an arms-length basis with unrelated third parties other than such Personparties;
(11xii) seek its termination, winding up, liquidation and/or dissolution or winding up in whole or in partpart unless required by Applicable Laws;
(12xiii) fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator or any principal or Affiliate thereof Borrower, the Equityholder, the Transferor or any other Person;
(13xiv) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(14) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securities);
(15) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulations;
(16xv) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity of the Person with which such other party is transacting business, or (b) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17xvi) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; provided that the foregoing shall not require any holder of Capital Stock of the Borrower to make any additional capital contributions;
(18xvii) file divide or consent to permit any division of the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditorsBorrower;
(19xviii) except as may be required by the Internal Revenue Code and regulations, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliatesAffiliates, (b) any Affiliate of a principal or (c) any other Person;
(20) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, unless the Seller delivers to the Administrative Agent and each Purchaser Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21xix) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate; provided that, so long as permitted by Applicable Laws, (a) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (b) such assets shall also be listed on the Borrower’s own separate balance sheet;
(22xx) [reserved];
(xxi) fail to pay its own liabilities and expenses only out maintain a sufficient number of employees, if any, in light of its own funds;
(23) fail contemplated business operations or to pay the salaries of its own employees in light of its contemplated business operationsemployees, if any;
(24xxii) acquire the obligations of or securities of issued by its Affiliates, it being understood that this clause (xxii) shall not prevent the Borrower from acquiring Loans from the Equityholder or its Affiliates acquiring Loans from the Borrower or stockholdersits Affiliates;
(25xxiii) guarantee any obligation of any person, including an Affiliate;
(xxiv) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including including, without limitation, paying for office space and services performed by any employee of an Affiliate;
(26xxv) fail to use separate stationery, invoices and checks bearing its own name;
(27xxvi) maintain its assets in such a manner that will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(xxvii) pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness to the Secured Parties hereunder;
(28A) except while a vacancy is being filled as provided in clause (C), fail at any time to have at least one (1) duly appointed independent manager (the “Independent Manager”) which (a) shall be a natural Person approved by the Administrative Agent in its sole discretion, (b) shall be a Person who has prior experience as an independent director, independent manager or independent member with at least three (3) years of employment experience, (c) is provided by CT Corporation, Corporation Service Company, Global Securitization Services, National Registered Agents, Inc., Wilmington Trust Company, ▇▇▇▇▇▇▇ Management Company, Lord Securities Corporation, ICG Services Limited, Circumference FS, HighWater or One Group Solutions, or another nationally recognized company reasonably approved by the Administrative Agent that is not an Affiliate of the Borrower and that provides professional independent managers or independent directors and other corporate services in the ordinary course of its business, and (d) is not, and has never been, and will not while serving as Independent Manager be, any of the following: (w) a member, partner, equityholder, manager, director, officer or employee of the Borrower or any of its equityholders or Affiliates (other than his or her service as an independent manager or independent director (including a manager or a director of an “Independent Director”independent general partner or similar managing entity) who is not of the Borrower or any of its equityholders or Affiliates); (x) a creditor, supplier or service provider (including provider of professional services) to the Borrower or any of its equityholders or Affiliates (other than a nationally recognized company that routinely provides professional independent managers or independent directors and has not been for at least five other corporate services to the Borrower or any of its equityholders or Affiliates in the ordinary course of business); (5y) years a family member of any such member, partner, equityholder, manager, director, officer, employee, trade credit creditor, supplier or shareholder service provider; or (z) a Person that controls (whether directly, indirectly or spouse, parent, sibling or child of the foregoingotherwise) any of (a) the Servicerw), (bx) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, or (ey) any Affiliate of any principal of the Servicerabove; provided, however, such Independent Director may be an independent director of another special purpose entity affiliated with the Servicer or (B) fail to ensure that all limited liability company any action relating to the selection, maintenance selection or replacement of the Independent Director are duly authorized by Manager during the unanimous vote Covenant Compliance Period shall require the written consent of the board Administrative Agent or (C) if an Independent Manager resigns, is removed or becomes deceased, fail to ensure that a successor Independent Manager is appointed as soon as possible. For the avoidance of directors doubt, a natural person who satisfies clause (including w) above by reason of being a person qualifying under the description in the parenthetical thereof and otherwise satisfies the conditions set forth in the foregoing clauses (a) through (d) shall be qualified to serve as an Independent Director)Manager of the Borrower;
(29xxix) fail to provide that the unanimous consent of all directors (including members and the consent of the Borrower’s Independent Director) Manager is required for the Seller Borrower to (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the SellerBorrower, (e) make any assignment for the benefit of the SellerBorrower’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; andor
(30xxx) take or refrain fail to file its own tax returns separate from takingthose of any other Person, except to the extent that the Borrower is treated as applicablea “disregarded entity” for tax purposes and is not required to file tax returns under applicable law, each of the activities specified and pay any material taxes required to be paid under applicable law except taxes that are being contested in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ LLP, dated as of the date hereof, upon good faith by appropriate proceedings and for which the conclusions expressed therein are basedit has set aside on its books adequate reserves in accordance with GAAP.
Appears in 1 contract
Sources: Loan, Security and Collateral Management Agreement (Phillip Street Middle Market Lending Fund LLC)
Special Purpose Entity. The Seller Borrower has not and shall not:
(1i) engage in any business or activity other than the purchase and receipt of Assets Collateral and related assets from the Originator under the Sale Agreementassets, the sale Grant of Assets Collateral under the Transaction Documents, and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (a) the Assets Collateral and related assets from the Originator under the Sale Agreement assets, and (b) incidental property as may be necessary for the operation of the SellerBorrower;
(3iii) except as otherwise expressly permitted in this Agreement, merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case first obtaining the consent of the Administrative Agent and each Purchaser AgentLender;
(4iv) except as otherwise expressly permitted in this Agreement, fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser AgentLender, amend, modify, terminate or fail to comply with the provisions of Sections 1.05, 1.07, 1.08, 4.02(b) and 10.01 of its operating agreementagreement and any of the defined terms in Section 1.01 of its operating agreement that are contained in any of the above-mentioned sections thereof, or fail to observe limited liability company formalities;
(5v) own any Subsidiary or make any investment in any Person without the consent of the Administrative Agent and each Purchaser AgentLender;
(6vi) except as permitted by this Agreement and the Lock-Box Intercreditor Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7vii) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) indebtedness to the Secured Parties hereunder hereunder, or (B) in conjunction with a repayment of all Advances owed to the PurchaserLenders, except for trade payables in the ordinary course of its business; provided, that, provided that such debt is not evidenced by a note and is paid when due;
(8) viii) become insolvent or fail to pay its debts and liabilities from its assets as the same shall become due;
(9ix) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10x) enter into any contract or agreement with any PersonAffiliate, except upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an armsarm’s-length basis with unrelated third parties other than such Personparties;
(11xi) seek its dissolution or winding up in whole or in part;
(12xii) fail to correct any known misunderstandings regarding the separate identity of Seller Borrower and the Originator or any principal or Affiliate thereof or any other Person;
(13xiii) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(14xiv) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash the Loans, Cash and investment-grade securitiesPermitted Investments);
(15xv) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulationsregulations (without limiting the foregoing, it is acknowledged and agreed that a single member limited liability company is a disregarded entity for purposes of the Code);
(16xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity with which such other party is transacting business, or (b) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17xvii) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18xviii) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors;
(19xix) except as may be required by the Internal Revenue Code and regulations, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliatesAffiliates, (b) any Affiliate of a principal or (c) any other Person;
(20xx) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller Borrower to the extent it has the ability to control the same, other than a pledge by NewStar Financial, Inc. of the limited liability company membership interests in the Borrower to Fortress Credit Corp., as administrative agent under any credit facility, pursuant to a pledge agreement approved by the Administrative Agent, unless the Seller Borrower delivers to the Administrative Agent and each Purchaser Agent Lender an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21xxi) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person (without limiting the foregoing, it is acknowledged that for accounting purposes, the Borrower may be consolidated with another Person as required by GAAP and included in such Person’s consolidated financial statements);
(22xxii) fail to pay its own liabilities and expenses only out of its own funds;
(23xxiii) fail to pay the salaries of its own employees employees, if any, in light of its contemplated business operations;
(24xxiv) acquire the obligations of or securities of issued by its Affiliates or stockholdersmembers;
(25xxv) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26xxvi) fail to use separate invoices and checks bearing its own name;
(27xxvii) pledge or permit the pledge of its assets for the benefit of any other Person, other than with respect to the payment of the indebtedness to the Secured Parties hereunder;
(28xxviii) (A) fail at any time to have at least one (1) independent director (an “Independent Director”) who Manager except while a vacancy is not and has not been for at least five (5) years a director, officer, employee, trade credit or shareholder (or spouse, parent, sibling or child of being filled pursuant to the foregoing) of (a) the Servicer, (b) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, Borrower’s organizational documents or (eB) any Affiliate of any principal of the Servicer; provided, however, such Independent Director may be an independent director of another special purpose entity affiliated with the Servicer or fail to ensure that all limited liability company action actions relating to the selection, maintenance selection or replacement of the Independent Director Manager are duly authorized by and in accordance with the unanimous vote of the board of directors (including the Independent Director)Borrower’s organizational documents;
(29xxix) fail to provide that the unanimous consent of all directors its managers (including the consent of the Independent DirectorManager) is required for the Seller Borrower to (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the SellerBorrower, (e) make any assignment for the benefit of the SellerBorrower’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; and
(30xxx) take or refrain from taking, as applicable, each of the activities specified in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ Dechert LLP, dated as of the date hereofClosing Date, upon which the conclusions expressed therein are based.
Appears in 1 contract
Sources: Loan and Servicing Agreement (NewStar Financial, Inc.)
Special Purpose Entity. The Seller Borrower has not and shall not:
(1i) engage in any business or activity other than the purchase purchase, receipt and receipt management of Assets Collateral, the transfer and related assets from pledge of Collateral pursuant to the Originator under terms of the Sale AgreementTransaction Documents, the sale of Assets Collateral as permitted hereunder, the entry into and the performance under the Transaction Documents, Documents and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (a) the Assets and related assets from the Originator under the Sale Agreement and Collateral or (b) incidental property as may be necessary for the operation of the SellerBorrower and the performance of its obligations under the Transaction Documents;
(3iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure(other than in accordance with the provisions hereof), without in each case first obtaining the prior written consent of the Administrative Agent and each Purchaser Agent, or except as permitted by this Agreement, change its legal structure, or jurisdiction of formation;
(4iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Agent, amend, modify, terminate or fail to comply with the provisions of its operating agreementpartnership agreement except as otherwise permitted pursuant to Section 5.2(h), or fail to observe limited liability company formalities;
(5v) form, acquire or own any Subsidiary Subsidiary, own any equity interest in any other entity (other than any Equity Security received in exchange for a defaulted Loan or portion thereof in connection with an insolvency, bankruptcy, reorganization, debt restructuring or workout of the Obligor thereof), or make any investment Investment in any Person (other than Permitted Investments) without the prior written consent of the Administrative Agent and each Purchaser Agent;
(6vi) except as permitted by this Agreement and the Lock-Box Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7vii) incur any debtIndebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness Indebtedness to the Secured Parties hereunder or in conjunction with a repayment of all Advances owed to the Purchaser, except for trade payables in Lenders and a termination of all the ordinary course of its businessCommitments; provided, that, such debt is not evidenced by a note [FS Investment] Loan and is paid when due;Security Agreement
(8) become insolvent or viii) fail to pay its debts and liabilities from its assets as the same shall become due;
(9ix) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10x) enter into any contract or agreement with any Person, except (a) the Transaction Documents and (b) other contracts or agreements that are upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than such Person;
(11xi) seek its dissolution or winding up in whole or in part;
(12xii) fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator or any principal or Affiliate thereof Borrower, the Transferor or any other Person;
(13xiii) except as provided in this Agreement, guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(14) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securities);
(15) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulations;
(16xiv) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity of the Person with which such other party is transacting business, or (b) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17xv) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18xvi) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors[Reserved];
(19xvii) except as may be required or permitted by the Internal Revenue Code and regulationsregulations or other applicable state or local tax law, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliatesAffiliates, (b) any Affiliate of a principal or (c) any other Person;
(20) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, unless the Seller delivers to the Administrative Agent and each Purchaser Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21xviii) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person;; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate provided that (a) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (b) such assets shall also be listed on the Borrower’s own separate balance sheet; [FS Investment] Loan and Security Agreement
(22xix) fail to pay its own liabilities and expenses only out of its own funds;
(23xx) fail to maintain a sufficient number of employees, if any, in light of its contemplated business operations or to pay the salaries of its own employees in light of its contemplated business operationsemployees, if any;
(24xxi) acquire the obligations of or securities of issued by its Affiliates or stockholdersmembers, it being understood that this clause (xxi) shall not prevent the Borrower from acquiring Loans from the Transferor;
(25xxii) guarantee any obligation of any person, including an Affiliate;
(xxiii) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26xxiv) fail to use separate invoices and checks bearing its own name;
(27xxv) pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness to the Secured Parties hereunder;
(28xxvi) other than prior to the Effective Date. (A) fail at any time to have at least one (1) independent director member (an the “Independent DirectorSpecial Member”) which shall be a natural Person approved by Administrative Agent in its sole discretion, which member must, in each such instance, be a Person who has prior experience as an independent director, independent manager or independent member with at least three years of employment experience and who is provided by CT Corporation, Corporation Service Company, Global Securitization Services, National Registered Agents, Inc., Wilmington Trust Company, ▇▇▇▇▇▇▇ Management Company, Lord Securities Corporation or, if none of those companies is then providing professional Special Members, another nationally recognized company reasonably approved by the Lenders, in each case that is not an Affiliate of the Borrower and that provides professional Special Members and other corporate services in the ordinary course of its business, and which individual is duly appointed as a Special Member and is not, and has never been, and will not been for at least five while serving as Special Member be, any of the following: (5w) years a member, partner, equityholder, manager, director, officer or employee of the Borrower or any of its equityholders or Affiliates (other than as a Special Member of the Borrower or any of its equityholders or Affiliates that is required by a creditor to be a single purpose bankruptcy remote entity); (x) a creditor, supplier or service provider (including provider of professional services) to the Borrower or any of its equityholders or Affiliates (other than a nationally recognized company that routinely provides professional Special Members and other corporate services to the Borrower or any of its equityholders or Affiliates in the ordinary course of business); (y) a family member of any such member, partner, equityholder, manager, director, officer, employee, trade credit creditor, supplier or shareholder service provider; or (z) a Person that controls (whether directly, indirectly or spouseotherwise) any of (w), parent(x) or (y) above; provided that the Borrower shall have ten (10) Business Days to replace any Special Member with a person approved by Administrative Agent in its sole discretion upon the death, sibling [FS Investment] Loan and Security Agreement resignation or child incapacitation of the foregoing) of (a) the Servicer, (b) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, current Special Member; or (eB) any Affiliate of any principal of the Servicer; provided, however, such Independent Director may be an independent director of another special purpose entity affiliated with the Servicer or fail to ensure that all limited liability company action relating to the selection, maintenance or replacement of the Independent Director are duly authorized by Special Member during the unanimous vote Covenant Compliance Period shall require the written consent of the board Administrative Agent. A natural person who otherwise satisfies the foregoing definition and satisfies subparagraph (w) by reason of directors being the Special Member of a “special purpose entity” affiliated with the Borrower shall be qualified to serve as a Special Member of the Borrower, provided that the fees that such individual earns from serving as Special Member of affiliates of the Borrower in any given year constitute in the aggregate less than five percent (including the Independent Director)5.00%) of such individual’s annual income for that year;
(29xxvii) fail to provide that the unanimous consent of all directors members (including the consent of the Independent DirectorBorrower’s Special Member) is required for the Seller Borrower to (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the SellerBorrower, (e) make any assignment for the benefit of the SellerBorrower’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; andor
(30xxviii) take or refrain fail to file its own tax returns separate from takingthose of any other Person, except to the extent that the Borrower is treated as applicablea “disregarded entity” for tax purposes and is not required to file tax returns under applicable law, each of the activities specified in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ LLP, dated as of the date hereof, upon which the conclusions expressed therein are basedand pay any taxes required to be paid under applicable law.
Appears in 1 contract
Special Purpose Entity. The Seller Borrower has not and shall not:
(1i) engage in any business or activity other than the purchase purchase, receipt and receipt management of Assets and related assets from the Originator under the Sale AgreementCollateral, the sale transfer and pledge of Assets under Collateral pursuant to the terms of the Transaction Documents, the entry into and the performance under the Transaction Documents and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (a) the Assets and related assets from the Originator under the Sale Agreement and Collateral or (b) incidental property as may be necessary for the operation of the SellerBorrower and the performance of its obligations under the Transaction Documents, including, without limitation, capital contributions which it may receive from any member;
(3iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure(other than in accordance with the provisions hereof), without without, in each case case, first obtaining the prior written consent of the Administrative Agent and each Purchaser AgentLender, or except as permitted by this Agreement, change its legal structure or jurisdiction of formation;
(4iv) except as otherwise permitted under clause (iii), fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser AgentLender, amend, modify, terminate or fail to comply with the provisions of Sections 1.05, 1.07, 1.08, 4.02(b), 6.01(b), 8.01(a)(i) and 10.01 of its operating agreementagreement and any of the defined terms in Section 1.01 of its operating agreement that are contained in any of the above-mentioned sections thereof, or fail to observe limited liability company formalities;
(5v) form, acquire or own any Subsidiary Subsidiary, own any equity interest in any other entity (other than equity interests in Obligors in connection with the exercise of any remedies with respect to a Loan or any exchange offer, work-out or restructuring of a Loan), or make any investment Investment in any Person (other than Permitted Investments or equity interests in Obligors in connection with the exercise of any remedies with respect to a Loan or any exchange offer, work-out or restructuring of a Loan) without the prior written consent of the Administrative Agent and each Purchaser Agent;
(6vi) except as permitted by this Agreement and the Lock-Box Intercreditor Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7vii) incur any debtIndebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness Indebtedness to the Secured Parties hereunder or in conjunction with a repayment of all Advances owed to the PurchaserLenders and a termination of all the Commitments, except for trade payables in the ordinary course of its business; provided, that, provided that such debt is not evidenced by a note and is paid when due;
(8) viii) become insolvent or fail to pay its debts and liabilities from its assets as the same shall become due;
(9ix) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10x) enter into any contract or agreement with any Person, except (a) the Transaction Documents and (b) other contracts or agreements that are upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an armsarm’s-length basis with third parties other than such Person; provided that, for the avoidance of doubt with regard to this clause (x), (i) to the extent the Equityholder acquires any Collateral from the Borrower, the amount of any cash or other assets paid or transferred to the Borrower in connection therewith in excess of the fair market value thereof shall be deemed a capital contribution by the Equityholder to the Borrower, and (ii) the member of the Borrower may contribute cash or other property as a capital contribution to the Borrower;
(11xi) seek its dissolution or winding up in whole or in part;
(12xii) fail to correct any known misunderstandings regarding the separate identity identities of Seller the Borrower and the Originator Equityholder or any principal or Affiliate thereof or any other Person;
(13xiii) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(14) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securities);
(15) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulations;
(16xiv) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity of the Person with which such other party is transacting business, or (b) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17xv) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18xvi) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors;
(19xvii) except as may be required or permitted by the Internal Revenue Code and regulationsregulations or other applicable state or local tax law, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliatesAffiliates, (b) any Affiliate of a principal or (c) any other Person;
(20) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, unless the Seller delivers to the Administrative Agent and each Purchaser Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21xviii) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however, that the Borrower’s assets and liabilities may be included in a consolidated financial statement of its Affiliate (or parent company) provided that (a) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (b) such assets and liabilities shall also be listed on the Borrower’s own separate balance sheet;
(22xix) fail to pay its own liabilities and expenses only out of its own funds;
(23xx) fail to pay the salaries of its own employees employees, if any, in light of its contemplated business operations;
(24xxi) except in connection with any exchange offer, work-out, restructuring or the exercise of any rights or remedies with respect to any Loan with respect to which an Obligor is or would thereby become an Affiliate, acquire the obligations or securities of issued by its Affiliates or stockholdersmembers;
(25xxii) [intentionally omitted];
(xxiii) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26xxiv) fail to use separate invoices and checks bearing its own name;
(27xxv) pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness to the Secured Parties hereunder;
(28xxvi) (A) fail at any time to have at least one (1) independent director (an “Independent Director”) who Manager except while a vacancy is not and has not been for at least five (5) years a director, officer, employee, trade credit or shareholder (or spouse, parent, sibling or child of being filled pursuant to the foregoing) of (a) the Servicer, (b) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, Borrower’s organizational documents or (eB) any Affiliate of any principal of the Servicer; provided, however, such Independent Director may be an independent director of another special purpose entity affiliated with the Servicer or fail to ensure that all limited liability company action actions relating to the selection or replacement of the Independent Manager are duly authorized and in accordance with the Borrower’s organizational documents;
(xxvii) fail to ensure that all limited liability company actions relating to the selection, maintenance or replacement of the Independent Director Manager are duly authorized by the unanimous vote of the board of directors (including applicable managers; provided that, unless prior written notice is provided to the Administrative Agent, neither the Borrower nor the Equityholder shall cause the Independent Director)Manager to be removed without cause;
(29xxviii) fail to provide that the unanimous consent of all directors managers (including the consent of the Independent DirectorManager) is required for the Seller Borrower to (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the SellerBorrower, (e) make any assignment for the benefit of the SellerBorrower’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; and;
(30xxix) fail to file its own tax returns separate from those of any other Person, except to the extent that the Borrower is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under applicable law, and pay any taxes required to be paid under applicable law; or
(xxx) take or refrain from taking, as applicable, each of the activities specified in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ Dechert LLP, dated as of the date hereofClosing Date, upon which the conclusions expressed therein are based.
Appears in 1 contract
Sources: Loan and Security Agreement (NewStar Financial, Inc.)
Special Purpose Entity. The Seller has not and shall not:
(1i) engage in any business or activity other than the purchase and receipt of Assets Collateral and related assets from the Originator under the Sale Agreement, the sale of Assets Collateral under the Transaction Documents, and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (a) the Assets Collateral and related assets from the Originator under the Sale Agreement and (b) incidental property as may be necessary for the operation of the Seller;
(3iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case first obtaining the consent of the Administrative Agent and each Purchaser Agent;
(4iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Agent, amend, modify, terminate or fail to comply with the provisions of its operating agreement, or fail to observe limited liability company formalities;
(5v) own any Subsidiary or make any investment in any Person without the consent of the Administrative Agent and each Purchaser Agent;
(6vi) except as permitted by this Agreement and the Lock-Box Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7vii) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness to the Secured Parties hereunder or in conjunction with a repayment of all Advances owed to the PurchaserPurchasers, except for trade payables in the ordinary course of its business; provided, that, provided that such debt is not evidenced by a note and is paid when due;
(8) viii) become insolvent or fail to pay its debts and liabilities from its assets as the same shall become due;
(9ix) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10x) enter into any contract or agreement with any Person, except upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than such Person;
(11xi) seek its dissolution or winding up in whole or in part;
(12xii) fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator or any principal or Affiliate thereof or any other Person;
(13xiii) guarantee, become obligated for, or hold itself out to be responsible for the debt indebtedness of another Person;
(14xiv) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securities);
(15xv) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulations;
(16xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity with which such other party is transacting business, or (b) to suggest that it is responsible for the debts indebtedness of any third party (including any of its principals or Affiliates);
(17xvii) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18xviii) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors;
(19xix) except as may be required by the Internal Revenue Code and regulations, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliates, (b) any Affiliate of a principal or (c) any other Person;
(20xx) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, unless the Seller delivers to the Administrative Agent and each Purchaser Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21xxi) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person;
(22xxii) fail to pay its own liabilities and expenses only out of its own funds;
(23xxiii) fail to pay the salaries of its own employees in light of its contemplated business operations;
(24xxiv) acquire the obligations or securities of its Affiliates or stockholders;
(25xxv) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26xxvi) fail to use separate invoices and checks bearing its own name;
(27xxvii) pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness to the Secured Parties hereunder;
(28xxviii) fail at any time to have at least one (1) independent director (an “Independent Director”) who is not and has not been for at least five (5) years a director, officer, employee, trade credit or shareholder (or spouse, parent, sibling or child of the foregoing) of (a) the Servicer, (b) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, or (e) any Affiliate of any principal of the ServicerServicer (an “Independent Director”); provided, however, provided that such Independent Director may be an independent director of another special purpose entity affiliated with the Servicer or its Affiliates or fail to ensure that all limited liability company action relating to the selection, maintenance or replacement of the Independent Director are duly authorized by the unanimous vote of the board of directors (including the Independent Director);
(29xxix) to provide that the unanimous consent of all directors (including the consent of the Independent Director) is required for the Seller to (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Seller, (e) make any assignment for the benefit of the Seller’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; and
(30xxx) take or refrain from taking, as applicable, each of the activities specified in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ LLP, dated as of the date hereof, upon which the conclusions expressed therein are based.
Appears in 1 contract
Special Purpose Entity. The Seller Borrower has not and shall not:
(1i) engage in any business or activity other than the purchase purchase, receipt and receipt management of Assets Collateral, the transfer and related assets from pledge of Collateral pursuant to the Originator under terms of the Sale AgreementTransaction Documents, the sale of Assets Collateral as permitted hereunder, the entry into and the performance under the Transaction Documents, Documents and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (a) the Assets and related assets from the Originator under the Sale Agreement and Collateral or (b) incidental property as may be necessary for the operation of the SellerBorrower and the performance of its obligations under the Transaction Documents;
(3iii) merge into or consolidate with any Person or dissolve, wind-up, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure(other than in accordance with the provisions hereof), without in each case first obtaining the prior written consent of the Administrative Agent and each Purchaser Agent, or except as permitted by this Agreement, change its legal structure, or jurisdiction of formation;
(4iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Agent, amend, modify, terminate or fail to comply with the provisions of its operating agreementagreement except as otherwise permitted pursuant to Section 5.2(h), or fail to observe limited liability company formalities;
(5v) form, acquire or own any Subsidiary Subsidiary, own any equity interest in any other entity (other than any Equity Security received in exchange for a defaulted Loan or portion thereof in connection with an insolvency, bankruptcy, reorganization, debt restructuring or workout of the Obligor thereof), or make any investment Investment in any Person CIBC – PPIF Loan and Security Agreement (other than Permitted Investments) without the prior written consent of the Administrative Agent and each Purchaser Agent;
(6vi) except as permitted by this Agreement and the Lock-Box Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7vii) incur any debtIndebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness Indebtedness to the Secured Parties hereunder or in conjunction with a repayment of all Advances owed to the Purchaser, except for trade payables in Lenders and a termination of all the ordinary course of its business; provided, that, such debt is not evidenced by a note and is paid when dueCommitments;
(8) become insolvent or viii) fail to pay its debts and liabilities from its assets as the same shall become due;
(9ix) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10x) enter into any contract or agreement with any Person, except (a) the Transaction Documents and (b) other contracts or agreements that are upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an arms-length arms‑length basis with third parties other than such Person;
(11xi) seek its dissolution dissolution, termination, liquidation or winding up in whole or in part;
(12xii) fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator or any principal or Affiliate thereof Borrower, the Transferor or any other Person;
(13xiii) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(14) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securities);
(15) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulations;
(16xiv) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity of the Person with which such other party is transacting business, or (b) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17xv) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18xvi) file divide or consent to permit any division of the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditorsBorrower;
(19xvii) except as may be required or permitted by the Internal Revenue Code and regulationsregulations or other applicable state or local tax law, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliatesAffiliates, (b) any Affiliate of a principal or (c) any other Person;; CIBC – PPIF Loan and Security Agreement
(20) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, unless the Seller delivers to the Administrative Agent and each Purchaser Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21xviii) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate provided that (a) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (b) such assets shall also be listed on the Borrower’s own separate balance sheet;
(22xix) fail to pay its own liabilities and expenses only out of its own funds;
(23xx) fail to maintain a sufficient number of employees, if any, in light of its contemplated business operations or to pay the salaries of its own employees in light of its contemplated business operationsemployees, if any;
(24xxi) acquire the obligations of or securities of issued by its Affiliates or stockholdersmembers, it being understood that this clause (xxi) shall not prevent the Borrower from acquiring Loans from the Transferor;
(25xxii) guarantee any obligation of any person, including an Affiliate;
(xxiii) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26xxiv) fail to use separate invoices and checks bearing its own name;
(27xxv) pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness to the Secured Parties hereunder;
(28A) fail at any time to have at least one (1) independent director (an the “Independent Director”) which shall be a natural Person approved by the Administrative Agent in its sole discretion, which director must, in each such instance, be a Person who has prior experience as an independent director, independent manager or independent member with at least three (3) years of employment experience and who is provided by ▇▇▇▇▇▇▇ & Associates, CT Corporation, Corporation Service Company, Global Securitization Services, National Registered Agents, Inc., Wilmington Trust Company, ▇▇▇▇▇▇▇ Management Company, Lord Securities Corporation or, if none of those companies is then providing professional Independent Directors, another nationally recognized company reasonably approved by the Lenders, in each case that is not an Affiliate of the Borrower and that provides professional independent directors and other corporate services in the ordinary course of its business, and which individual is duly appointed as an Independent Director and is not, and has never been, and will not been for at least five while serving as Independent Director be, any of the following: (5w) years a member, partner, equityholder, manager, director, officer or employee of the Borrower or any of its CIBC – PPIF Loan and Security Agreement equityholders or Affiliates (other than as an Independent Director of the Borrower or any of its equityholders or Affiliates that is required by a creditor to be a single purpose bankruptcy remote entity); (x) a creditor, supplier or service provider (including provider of professional services) to the Borrower or any of its equityholders or Affiliates (other than a nationally recognized company that routinely provides professional Independent Directors and other corporate services to the Borrower or any of its equityholders or Affiliates in the ordinary course of business); (y) a family member of any such member, partner, equityholder, manager, director, officer, employee, trade credit creditor, supplier or shareholder service provider; or (z) a Person that controls (whether directly, indirectly or spouse, parent, sibling or child of the foregoingotherwise) any of (a) the Servicerw), (bx) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, or (ey) any Affiliate of any principal of the Servicerabove; provided, however, such Independent Director may be an independent director of another special purpose entity affiliated with the Servicer or (B) fail to ensure that all limited liability company action relating to the selection, maintenance or replacement of the Independent Director are duly authorized by during the unanimous vote Covenant Compliance Period shall require the written consent of the board Administrative Agent. A natural person who otherwise satisfies the foregoing definition and satisfies clause (w) above by reason of directors (including being the Independent Director)Director of a “special purpose entity” affiliated with the Borrower shall be qualified to serve as an Independent Director of the Borrower;
(29xxvii) fail to provide in its Governing Document that the unanimous consent of all directors (including members and the consent of the Independent Director) is Director are required for the Seller Borrower to (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against itthe Borrower, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, provisional liquidator assignee, trustee, sequestrator, custodian custodian, restructuring officer or any similar official for the SellerBorrower, (e) make any assignment for the benefit of the SellerBorrower’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; andor
(30xxviii) take or refrain fail to file its own tax returns separate from takingthose of any other Person, except to the extent that the Borrower is treated as applicablea “disregarded entity” for tax purposes and is not required to file tax returns under applicable law, each of the activities specified in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ LLP, dated as of the date hereof, upon which the conclusions expressed therein are basedand pay any taxes required to be paid under applicable law.
Appears in 1 contract
Sources: Loan and Security Agreement (PennantPark Private Income Fund)
Special Purpose Entity. The Seller Borrower has not and shall not:
(1i) engage in any business or activity other than the purchase purchase, receipt and receipt management of Assets Collateral, the transfer and related assets from pledge of Collateral pursuant to the Originator under terms of the Sale AgreementTransaction Documents, the sale of Assets Collateral as permitted hereunder, the entry into and the performance under the Transaction Documents, Documents and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (a) the Assets and related assets from the Originator under the Sale Agreement and Collateral or (b) incidental property as may be necessary for the operation of the SellerBorrower and the performance of its obligations under the Transaction Documents;
(3iii) merge into or consolidate with any Person or dissolve, wind-up, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure(other than in accordance with the provisions hereof), without in each case first obtaining the prior written consent of the Administrative Agent and each Purchaser Agent, or except as permitted by this Agreement, change its legal structure, or jurisdiction of formation;
(4iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Agent, amend, modify, terminate or fail to comply with the provisions of its operating agreementagreement except as otherwise permitted pursuant to Section 5.2(h), or fail to observe limited liability company formalities;
(5v) form, acquire or own any Subsidiary Subsidiary, own any equity interest in any other entity (other than any Equity Security received in exchange for a defaulted Loan or portion thereof in connection with an insolvency, bankruptcy, reorganization, debt restructuring or workout of the Obligor thereof), or make any investment Investment in any Person (other than Permitted Investments) without the prior written consent of the Administrative Agent and each Purchaser Agent;
(6vi) except as permitted by this Agreement and the Lock-Box Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7vii) incur any debtIndebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness Indebtedness to the Secured Parties hereunder or in conjunction with a repayment of all Advances owed to the Purchaser, except for trade payables in Lenders and a termination of all the ordinary course of its business; provided, that, such debt is not evidenced by a note and is paid when dueCommitments;
(8) become insolvent or viii) fail to pay its debts and liabilities from its assets as the same shall become due;
(9ix) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10x) enter into any contract or agreement with any Person, except (a) the Transaction Documents and (b) other contracts or agreements that are upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an arms-length arms‑length basis with third parties other than such Person;
(11xi) seek its dissolution dissolution, termination, liquidation or winding up in whole or in part;
(12xii) fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator or any principal or Affiliate thereof Borrower, the Transferor or any other Person;
(13xiii) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(14) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securities);
(15) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulations;
(16xiv) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity of the Person with which such other party is transacting business, or (b) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17xv) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18xvi) file divide or consent to permit any division of the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditorsBorrower;
(19xvii) except as may be required or permitted by the Internal Revenue Code and regulationsregulations or other applicable state or local tax law, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliatesAffiliates, (b) any Affiliate of a principal or (c) any other Person;
(20) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, unless the Seller delivers to the Administrative Agent and each Purchaser Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21xviii) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate provided that (a) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (b) such assets shall also be listed on the Borrower’s own separate balance sheet;
(22xix) fail to pay its own liabilities and expenses only out of its own funds;
(23xx) fail to maintain a sufficient number of employees, if any, in light of its contemplated business operations or to pay the salaries of its own employees in light of its contemplated business operationsemployees, if any;
(24xxi) acquire the obligations of or securities of issued by its Affiliates or stockholdersmembers, it being understood that this clause (xxi) shall not prevent the Borrower from acquiring Loans from the Transferor;
(25xxii) guarantee any obligation of any person, including an Affiliate;
(xxiii) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26xxiv) fail to use separate invoices and checks bearing its own name;
(27xxv) pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness to the Secured Parties hereunder;
(28xxvi) (A) fail at any time to have at least one (1) independent director manager (an the “Independent DirectorManager”) which shall be a natural Person who has prior experience as an independent director, independent manager or independent member with at least three (3) years of employment experience and who is provided by CT Corporation, Corporation Service Company, ▇▇▇▇▇▇ Fiduciary Services, Global Securitization Services, National Registered Agents, Inc., Wilmington Trust Company, ▇▇▇▇▇▇▇ Management Company, Lord Securities Corporation or, if none of those companies is then providing professional independent managers, another nationally recognized company reasonably approved by the Administrative Agent, in each case that is not an Affiliate of the Borrower and that provides professional independent managers and other corporate services in the ordinary course of its business, and which individual is duly appointed as an Independent Manager and is not, and has never been, and will not been for at least five while serving as Independent Manager be, any of the following: (5w) years a member, partner, equityholder, manager, director, officer or employee of the Borrower or any of its equityholders or Affiliates (other than as an independent manager of the Borrower or any of its equityholders or Affiliates that is required by a creditor to be a single purpose bankruptcy remote entity); (x) a creditor, supplier or service provider (including provider of professional services) to the Borrower or any of its equityholders or Affiliates (other than a nationally recognized company that routinely provides professional independent managers and other corporate services to the Borrower or any of its equityholders or Affiliates in the ordinary course of business); (y) a family member of any such member, partner, equityholder, manager, director, officer, employee, trade credit creditor, supplier or shareholder service provider; or (z) a Person that controls (whether directly, indirectly or spouse, parent, sibling or child of the foregoingotherwise) any of (a) the Servicerw), (bx) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, or (ey) any Affiliate of any principal of the Servicerabove; provided, however, such Independent Director may be an independent director of another special purpose entity affiliated with the Servicer or (B) fail to ensure that all limited liability company action relating to the selection, maintenance or replacement of the Independent Director are duly authorized by Manager during the unanimous vote Covenant Compliance Period shall require the written consent of the board Administrative Agent. A natural person who otherwise satisfies the foregoing definition and satisfies clause (w) above by reason of directors being an independent manager of a “special purpose entity” affiliated with the Borrower shall be qualified to serve as an Independent Manager of the Borrower, provided that the fees that such individual earns from serving as an independent manager of affiliates of the Borrower in any given year constitute in the aggregate less than five percent (including the Independent Director)5.00%) of such individual’s annual income for that year;
(29xxvii) fail to provide that the unanimous consent of all directors managers (including the consent of the Borrower’s Independent DirectorManager) is required for the Seller Borrower to (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the SellerBorrower, (e) make any assignment for the benefit of the SellerBorrower’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; andor
(30xxviii) take or refrain fail to file its own tax returns separate from takingthose of any other Person, except to the extent that the Borrower is treated as applicablea “disregarded entity” for tax purposes and is not required to file tax returns under applicable law, each of the activities specified and pay any taxes required to be paid under applicable law except taxes that are being contested in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ LLP, dated as of the date hereof, upon good faith by appropriate proceedings and for which the conclusions expressed therein are basedit has set aside on its books adequate reserves in accordance with GAAP.
Appears in 1 contract
Sources: Loan, Security and Collateral Management Agreement (5C Lending Partners Corp.)
Special Purpose Entity. The Seller has not and shall not:
(1) engage in any business or activity other than the purchase and receipt of Assets and related assets from the Originator under the Sale Agreement, the sale of Assets under the Transaction Documents, and such other activities as are incidental thereto;
(2) acquire or own any material assets other than (a) the Assets and related assets from the Originator under the Sale Agreement and (b) incidental property as may be necessary for the operation of the Seller;
(3) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case first obtaining the consent of the Administrative Agent and each the Purchaser Agent;
(4) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each the Purchaser Agent, amend, modify, terminate or fail to comply with the provisions of its operating agreement, or fail to observe limited liability company formalities;
(5) own any Subsidiary or make any investment in any Person without the consent of the Administrative Agent and each the Purchaser Agent;
(6) except as permitted by this Agreement and the Lock-Box Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness to the Secured Parties hereunder or in conjunction with a repayment of all Advances owed to the Purchaser, except for trade payables in the ordinary course of its business; provided, that, such debt is not evidenced by a note and is paid when due;
(8) become insolvent or fail to pay its debts and liabilities from its assets as the same shall become due;
(9) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10) enter into any contract or agreement with any Person, except upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than such Person;
(11) seek its dissolution or winding up in whole or in part;
(12) fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator or any principal or Affiliate thereof or any other Person;
(13) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(14) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securities);
(15) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulations;
(16) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity with which such other party is transacting business, or (b) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors;
(19) except as may be required by the Internal Revenue Code and regulations, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliates, (b) any Affiliate of a principal or (c) any other Person;
(20) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, unless the Seller delivers to the Administrative Agent and each the Purchaser Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person;
(22) fail to pay its own liabilities and expenses only out of its own funds;
(23) fail to pay the salaries of its own employees in light of its contemplated business operations;
(24) acquire the obligations or securities of its Affiliates or stockholders;
(25) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26) fail to use separate invoices and checks bearing its own name;
(27) pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness to the Secured Parties hereunder;
(28) fail at any time to have at least one (1) independent director (an “"Independent Director”") who is not and has not been for at least five (5) years a director, officer, employee, trade credit or shareholder (or spouse, parent, sibling or child of the foregoing) of (a) the Servicer, (b) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, or (e) any Affiliate of any principal of the Servicer; provided, however, such Independent Director may be an independent director of another special purpose entity affiliated with the Servicer or fail to ensure that all limited liability company action relating to the selection, maintenance or replacement of the Independent Director are duly authorized by the unanimous vote of the board of directors (including the Independent Director);
(29) fail to provide that have the unanimous consent of all directors (including the consent of the Independent Director) is required for the Seller to (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings Insolvency Proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Seller, (e) make any assignment for the benefit of the Seller’s 's creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; and
(30) take or refrain from taking, as applicable, each of fail to comply with the activities assumptions specified in the non-consolidation opinion of P▇▇▇▇▇▇ B▇▇▇▇▇ LLP, dated as of the date hereofFebruary 28, 2003, upon which the conclusions expressed therein are based.
Appears in 1 contract
Sources: Loan Certificate and Servicing Agreement (Capitalsource Inc)
Special Purpose Entity. The Seller Borrower has not and shall notnot from the Closing Date to the Paid-in-Full Date:
(1i) engage in any business or activity other than the purchase and receipt of Assets Contracts and related assets Related Security from the Originator under the Sale Purchase Agreement, the sale pledge of Assets the Asset Pool under the Transaction Documents, the issuance of the Note and the borrowing and securing of Advances hereunder and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (aA) the Assets and related assets from Related Security, (B) the Originator under the Sale Agreement Hedge Agreements and (bC) incidental property as may be necessary for the operation of the SellerBorrower;
(3iii) merge into or consolidate with any Person or dissolvedissolve (except as otherwise expressly permitted in this Agreement), terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets (except as otherwise expressly permitted in this Agreement) or change its legal structure, without in each case first obtaining the consent of the Administrative Agent and each Purchaser Deal Agent’s consent;
(4iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Deal Agent, amend, modify, terminate or terminate, fail to comply with the provisions of its operating Certificate of Formation or its limited liability company agreement, or fail to observe limited liability company formalities;
(5v) own any Subsidiary subsidiary or make any investment in any Person without the consent of the Administrative Agent and each Purchaser Deal Agent;
(6vi) except as permitted by this Agreement and the Lock-Box Agreement, commingle its assets with the assets of any of its Affiliates, Affiliates or of any other Person;
(7vii) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness Indebtedness to the Secured Parties hereunder or in conjunction with a repayment of all Advances owed to the Purchaser, except for trade payables in the ordinary course of its business; provided, that, provided that such debt is trade payables are not evidenced by a note and is are paid when due;
(8) viii) become insolvent or fail to pay its debts and liabilities from its assets as the same shall become due;
(9ix) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10x) enter into any contract or agreement with any Personof its Affiliates, except upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an arms-length basis with unrelated third parties other than such Personparties;
(11xi) seek its dissolution or winding up in whole or in part;
(12xii) fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator Borrower or any principal or Affiliate thereof or any other Person;
(13xiii) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(14xiv) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than the Assets, the Hedge Agreements, cash and investment-grade securitiesPermitted Investments);
(15xv) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulationsregulations issued thereunder;
(16xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (aA) to mislead others as to the identity with which such other party is transacting business, or (bB) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17xvii) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18xviii) file or consent to the filing of or any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, Insolvency Law or make an assignment for the benefit of creditors;
(19xix) except as may be required by the Internal Revenue Code and regulationsregulations issued thereunder, share any common logo with or hold itself out as or be considered as a department or division of (aA) any of its principals or affiliatesAffiliates, (bB) any Affiliate of a principal or (cC) any other Person;
(20xx) other than as expressly permitted by this Agreement, permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller Borrower to the extent it has the ability to control the same, unless the Seller Borrower delivers to the Administrative Agent and each Purchaser Deal Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transferopinion;
(21xxi) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person (without limiting the foregoing, it is acknowledged that for accounting purposes, the Borrower may be consolidated with another Person as required by GAAP and included in such Person’s consolidated financial statements);
(22xxii) fail to pay its own liabilities and expenses only out of its own funds;
(23xxiii) fail to pay the salaries of its own employees employees, if any, in light of its contemplated business operations;
(24xxiv) acquire the obligations or securities of its Affiliates or stockholdersmembers;
(25xxv) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26xxvi) fail to use separate invoices and checks bearing its own name;
(27xxvii) pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness to the Secured Parties hereunder;
(28xxviii) fail at any time to have at least one (1) independent director (an “Independent Director”) who is not and has not been for at least five (5) years a director, officer, employee, trade credit or shareholder (or spouse, parent, sibling or child of the foregoing) of (a) the Servicer, (b) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, or (e) any Affiliate of any principal of the Servicer; provided, however, such Independent Director may be an independent director of another special purpose entity affiliated with the Servicer or fail to ensure that all limited liability company action relating to the selection, maintenance or replacement of the Independent Director are duly authorized by the unanimous vote of the board of directors (including the Independent Director)Manager;
(29xxix) fail to provide that the unanimous consent of all directors (including the consent of the Independent Director) Manager is required for the Seller Borrower to (aA) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (bB) institute or consent to the institution of bankruptcy or insolvency proceedings Insolvency Proceedings against it, (cC) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvencyInsolvency Law, (dD) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the SellerBorrower, (eE) make any assignment for the benefit of the SellerBorrower’s creditors, (fF) admit in writing its inability to pay its debts generally as they become due, or (gG) take any action in furtherance of any of the foregoing; and
(30xxx) take or refrain from taking, as applicable, each of the activities specified in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ Dechert LLP, dated as of delivered on the date hereofClosing Date, upon which the conclusions expressed therein are based.
Appears in 1 contract
Special Purpose Entity. The Seller has not and shall not:
(1i) engage in any business or activity other than the purchase and receipt of Assets Collateral and related assets from the Originator under the Sale Agreement, the sale of Assets Collateral under the Transaction Documents, the ownership of Capital Stock of 2007-A/LLC and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (a) the Assets Collateral and related assets from the Originator under the Sale Agreement Agreement, (b) the Capital Stock of 2007-A/LLC and (bc) incidental property as may be necessary for the operation of the Seller;
(3iii) except in connection with the 2009 Restructuring and solely to the extent effectuated prior to the New Effective Date, merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case first obtaining the consent of the Administrative Agent and each Purchaser Agent;
(4iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Agent, amend, modifyamend or modify (except in connection with the 2009 Restructuring and solely to the extent effectuated prior to the New Effective Date), terminate or fail to comply with the provisions of its operating agreement, or fail to observe limited liability company formalities;
(5v) except for 2007-A/LLC, own any Subsidiary or make any investment in any Person without the consent of the Administrative Agent and each Purchaser Agent;
(6vi) except as permitted by this Agreement and the Lock-Box Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7vii) except for the Capital Contribution Agreement, incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness to the Secured Parties hereunder or in conjunction with a repayment of all Advances owed to the PurchaserPurchasers, except for trade payables in the ordinary course of its business; provided, that, provided that such debt is not evidenced by a note and is paid when due;
(8) viii) become insolvent or fail to pay its debts and liabilities from its assets as the same shall become due;
(9ix) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10x) except for the Capital Contribution Agreement, enter into any contract or agreement with any Person, except upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than such Person;
(11xi) seek its dissolution or winding up in whole or in part;
(12xii) fail to correct any known misunderstandings regarding the separate identity of Seller Seller, the New Parent and the Originator or any principal or Affiliate thereof or any other Person;
(13xiii) except for the Capital Contribution Agreement, guarantee, become obligated for, or hold itself out to be responsible for the debt indebtedness of another Person;
(14xiv) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securities);
(15xv) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulations;
(16xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity with which such other party is transacting business, or (b) to suggest that it is responsible for the debts indebtedness of any third party (including any of its principals or Affiliates);
(17xvii) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18xviii) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors;
(19xix) except as may be required by the Internal Revenue Code and regulations, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliates, (b) any Affiliate of a principal or (c) any other Person;
(20xx) except in connection with the 2009 Restructuring and solely to the extent effectuated prior to the New Effective Date, permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, unless the Seller delivers to the Administrative Agent and each Purchaser Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21xxi) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person;
(22xxii) fail to pay its own liabilities and expenses only out of its own fundsfunds or out of funds received by it in connection with its ownership of Capital Stock in 2007-A/LLC;
(23xxiii) fail to pay the salaries of its own employees in light of its contemplated business operations;
(24xxiv) acquire the obligations or securities of its Affiliates or stockholdersstockholders (other than 2007-A/LLC) ;
(25xxv) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26xxvi) fail to use separate invoices and checks bearing its own name;
(27xxvii) pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness to the Secured Parties hereunderhereunder and other than pursuant to the Capital Contribution Agreement;
(28xxviii) fail at any time to have at least one (1) independent director (an “Independent Director”) who is not and has not been for at least five (5) years a director, officer, employee, trade credit or shareholder (or spouse, parent, sibling or child of the foregoing) of (a) the Servicer, (b) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, or (e) any Affiliate of any principal of the ServicerServicer (an “Independent Director”); provided, however, provided that such Independent Director may be an independent director of another special purpose entity affiliated with the Servicer or its Affiliates or fail to ensure that all limited liability company action relating to the selection, maintenance or replacement of the Independent Director are duly authorized by the unanimous vote of the board of directors (including the Independent Director);
(29xxix) to provide that take any of the following actions without obtaining the prior unanimous consent of all directors (including the consent of the Independent Director) is required for the Seller to ): (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Seller, (e) make any assignment for the benefit of the Seller’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; and
(30xxx) take or refrain from taking, as applicable, each of the activities specified in the non-consolidation opinion of P▇▇▇▇▇▇ B▇▇▇▇▇ LLP, dated as of the date hereof, upon which the conclusions expressed therein are basedNew Effective Date.
Appears in 1 contract
Special Purpose Entity. The Seller has not and shall not:
(1i) engage in any business or activity other than the purchase and receipt of Assets Collateral and related assets from the Originator under the Sale Agreement, the sale of Assets Collateral under the Transaction Documents, and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (a) the Assets Collateral and related assets from the Originator under the Sale Agreement and (b) incidental property as may be necessary for the operation of the Seller;
(3iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case first obtaining the consent of the Administrative Agent and each Purchaser Agent;
(4iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Agent, amend, modify, terminate or fail to comply with the provisions of its operating agreement, or fail to observe limited liability company formalities;
(5v) own any Subsidiary or make any investment in any Person without the consent of the Administrative Agent and each Purchaser Agent;
(6vi) except as permitted by this Agreement and the Lock-Box Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7vii) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness to the Secured Parties hereunder or in conjunction with a repayment of all Advances owed to the PurchaserPurchasers, except for trade payables in the ordinary course of its business; provided, that, provided that such debt is not evidenced by a note and is paid when due;
(8) viii) become insolvent or fail to pay its debts and liabilities from its assets as the same shall become due;
(9ix) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10x) enter into any contract or agreement with any Person, except upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than such Person;
(11xi) seek its dissolution or winding up in whole or in part;
(12xii) fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator or any principal or Affiliate thereof or any other Person;
(13xiii) guarantee, become obligated for, or hold itself out to be responsible for the debt indebtedness of another Person;
(14xiv) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securities);
(15xv) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulations;
(16xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity with which such other party is transacting business, or (b) to suggest that it is responsible for the debts indebtedness of any third party (including any of its principals or Affiliates);
(17xvii) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18xviii) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors;
(19xix) except as may be required by the Internal Revenue Code and regulations, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliates, (b) any Affiliate of a principal or (c) any other Person;
(20xx) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, unless the Seller delivers to the Administrative Agent and each Purchaser Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21xxi) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person;
(22xxii) fail to pay its own liabilities and expenses only out of its own funds;
(23xxiii) fail to pay the salaries of its own employees in light of its contemplated business operations;
(24xxiv) acquire the obligations or securities of its Affiliates or stockholders;
(25xxv) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26xxvi) fail to use separate invoices and checks bearing its own name;
(27xxvii) pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness to the Secured Parties hereunder;
(28xxviii) fail at any time to have at least one (1) independent director (an “Independent Director”) who is not and has not been for at least five (5) years a director, officer, employee, trade credit or shareholder (or spouse, parent, sibling or child of the foregoing) of (a) the Servicer, (b) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, or (e) any Affiliate of any principal of the ServicerServicer (an “Independent Director”); provided, however, provided that such Independent Director may be an independent director of another special purpose entity affiliated with the Servicer or its Affiliates or fail to ensure that all limited liability company action relating to the selection, maintenance or replacement of the Independent Director are duly authorized by the unanimous vote of the board of directors (including the Independent Director);
(29xxix) to provide that take any of the following actions without obtaining the prior unanimous consent of all directors (including the consent of the Independent Director) is required for the Seller to ): (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Seller, (e) make any assignment for the benefit of the Seller’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; and
(30xxx) take or refrain from taking, as applicable, each of the activities specified in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ LLP, dated as of the date hereofSeptember 10, upon which the conclusions expressed therein are based2007.
Appears in 1 contract
Special Purpose Entity. The Seller Borrower has not and shall not:
(1i) engage in any business or activity other than the purchase purchase, receipt and receipt management of Assets Collateral, the transfer and related assets from pledge of Collateral pursuant to the Originator under terms of the Sale AgreementTransaction Documents, the sale of Assets Collateral as permitted hereunder, the entry into and the performance under the Transaction Documents, Documents and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (a) the Assets and related assets from the Originator under the Sale Agreement and Collateral or (b) incidental property as may be necessary for the operation of the SellerBorrower and the performance of its obligations under the Transaction Documents;
(3iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure(other than in accordance with the provisions hereof), without in each case first obtaining the prior written consent of the Administrative Agent and each Purchaser Agent, or except as permitted by this Agreement, change its legal structure, or jurisdiction of formation;
(4iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Agent, amend, modify, terminate or fail to comply with the provisions of its operating agreementagreement except as otherwise permitted pursuant to Section 5.2(h), or fail to observe limited liability company organizational formalities;
(5v) form, acquire or own any Subsidiary Subsidiary, own any equity interest in any other entity (other than any Equity Security received in exchange for a defaulted Loan or portion thereof in connection with an insolvency, bankruptcy, reorganization, debt restructuring or workout of the Obligor thereof), or make any investment Investment in any Person (other than Permitted Investments) without the prior written consent of the Administrative Agent; provided that, if required or deemed advisable by the Fund in connection with the Fund’s maintenance of its status or eligibility to be taxed as a Regulated Investment Company (as determined by the Fund in its reasonable discretion), the Borrower may form a wholly owned Subsidiary and contribute to such Subsidiary any Equity Security or any other asset that is not an Eligible Loan, subject to the satisfaction of the following conditions (as determined by the Administrative Agent in its reasonable discretion): (A) such Subsidiary becomes jointly and each Purchaser Agentseverally liable for all obligations of the Borrower under this Agreement and (B) the Borrower has furnished to the Administrative Agent information and documentation reasonably requested by the Administrative Agent or any Lender for the purpose of compliance with “know your customer” laws, including the Beneficial Ownership Regulation, with respect to such Subsidiary;
(6vi) except as permitted by this Agreement and the Lock-Box Agreement, fail to hold all of its assets solely in its own name;
(vii) commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7viii) incur any debtIndebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness Indebtedness to the Secured Parties hereunder or in conjunction with a repayment of all Loan Advances owed to the Purchaser, except for trade payables in Lenders and a termination of all the ordinary course of its business; provided, that, such debt is not evidenced by a note and is paid when dueCommitments;
(8) become insolvent or ix) fail to pay its debts and liabilities solely from its own assets as the same shall become due;
(9x) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10xi) enter into any contract or agreement with any Person, including the Transaction Documents, Underlying Instruments, purchase, sale or transfer agreements related to Collateral, and agreements incidental thereto, except in the ordinary course of business and upon terms and conditions that are commercially reasonable and reasonable, intrinsically fair and substantially similar to those that would be available on an arms-length basis with unrelated third parties other than such Personparties;
(11xii) seek its termination, winding up, liquidation and/or dissolution or winding up in whole or in partpart unless required by Applicable Laws;
(12xiii) fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator or any principal or Affiliate thereof Borrower, the Equityholder, the Transferor or any other Person;
(13xiv) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(14) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securities);
(15) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulations;
(16xv) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity of the Person with which such other party is transacting business, or (b) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17xvi) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; provided that the foregoing shall not require any holder of Capital Stock of the Borrower to make any additional capital contributions;
(18xvii) file divide or consent to permit any division of the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditorsBorrower;
(19xviii) except as may be required by the Internal Revenue Code and regulations, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliatesAffiliates, (b) any Affiliate of a principal or (c) any other Person;
(20) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, unless the Seller delivers to the Administrative Agent and each Purchaser Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21xix) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate; provided that, so long as permitted by Applicable Laws, (a) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (b) such assets shall also be listed on the Borrower’s own separate balance sheet;
(22xx) [reserved];
(xxi) fail to pay its own liabilities and expenses only out maintain a sufficient number of employees, if any, in light of its own funds;
(23) fail contemplated business operations or to pay the salaries of its own employees in light of its contemplated business operationsemployees, if any;
(24xxii) acquire the obligations of or securities of issued by its Affiliates, it being understood that this clause (xxii) shall not prevent the Borrower from acquiring Loans from the Equityholder or its Affiliates acquiring Loans from the Borrower or stockholdersits Affiliates;
(25xxiii) guarantee any obligation of any person, including an Affiliate;
(xxiv) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including including, without limitation, paying for office space and services performed by any employee of an Affiliate;
(26xxv) fail to use separate stationery, invoices and checks bearing its own name;
(27xxvi) maintain its assets in such a manner that will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(xxvii) pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness to the Secured Parties hereunder;
(28A) except while a vacancy is being filled as provided in clause (C), fail at any time to have at least one (1) duly appointed independent manager (the “Independent Manager”) which (a) shall be a natural Person who has prior experience as an independent director, independent manager or independent member with at least three (3) years of employment experience, (b) is provided by CT Corporation, Corporation Service Company, Global Securitization Services, National Registered Agents, Inc., Wilmington Trust Company, ▇▇▇▇▇▇▇ Management Company, Lord Securities Corporation, ICG Services Limited, Circumference FS, HighWater or One Group Solutions, or another nationally recognized company reasonably approved by the Administrative Agent that is not an Affiliate of the Borrower and that provides professional independent managers or independent directors and other corporate services in the ordinary course of its business, and (c) is not, and has never been, and will not while serving as Independent Manager be, any of the following: (w) a member, partner, equityholder, manager, director, officer or employee of the Borrower or any of its equityholders or Affiliates (other than his or her service as an independent manager or independent director (including a manager or a director of an “Independent Director”independent general partner or similar managing entity) who is not of the Borrower or any of its equityholders or Affiliates); (x) a creditor, supplier or service provider (including provider of professional services) to the Borrower or any of its equityholders or Affiliates (other than a nationally recognized company that routinely provides professional independent managers or independent directors and has not been for at least five other corporate services to the Borrower or any of its equityholders or Affiliates in the ordinary course of business); (5y) years a family member of any such member, partner, equityholder, manager, director, officer, employee, trade credit creditor, supplier or shareholder service provider; or (z) a Person that controls (whether directly, indirectly or spouse, parent, sibling or child of the foregoingotherwise) any of (a) the Servicerw), (bx) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, or (ey) any Affiliate of any principal of the Servicerabove; provided, however, such Independent Director may be an independent director of another special purpose entity affiliated with the Servicer or (B) fail to ensure that all limited liability company any action relating to the selection, maintenance selection or replacement of the Independent Director are duly authorized by Manager during the unanimous vote Covenant Compliance Period shall require the written consent of the board Administrative Agent or (C) if an Independent Manager resigns, is removed or becomes deceased, fail to ensure that a successor Independent Manager is appointed as soon as possible. For the avoidance of directors doubt, a natural person who satisfies clause (including w) above by reason of being a person qualifying under the description in the parenthetical thereof and otherwise satisfies the conditions set forth in the foregoing clauses (a) through (d) shall be qualified to serve as an Independent Director)Manager of the Borrower;
(29xxix) fail to provide that the unanimous consent of all directors (including members and the consent of the Borrower’s Independent Director) Manager is required for the Seller Borrower to (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the SellerBorrower, (e) make any assignment for the benefit of the SellerBorrower’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; andor
(30xxx) take or refrain fail to file its own tax returns separate from takingthose of any other Person, except to the extent that the Borrower is treated as applicablea “disregarded entity” for tax purposes and is not required to file tax returns under applicable law, each of the activities specified and pay any material taxes required to be paid under applicable law except taxes that are being contested in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ LLP, dated as of the date hereof, upon good faith by appropriate proceedings and for which the conclusions expressed therein are basedit has set aside on its books adequate reserves in accordance with GAAP.
Appears in 1 contract
Sources: Loan, Security and Collateral Management Agreement (Phillip Street Middle Market Lending Fund LLC)
Special Purpose Entity. The Seller Borrower will not (nor has not and shall not:
(1) it taken any such action in the past): engage in any business or activity other than the purchase and receipt of Assets Receivables and related assets from the Originator under the Sale Second Tier Purchase Agreement, the sale pledge of Assets Receivables and related assets under the Transaction Documents, Basic Documents and such other activities as are incidental thereto;
(2) ; acquire or own any material assets other than (aA) the Assets Receivables and related assets from the Originator under the Sale Agreement and Second Tier Purchase Agreement, (bB) incidental property as may be necessary for the operation of the Seller;
Borrower and (3C) cash generated from the foregoing; merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case first obtaining the Administrative Agent’s consent (acting at the direction of the Administrative Agent and each Purchaser Agent;
(4) Required Lenders); elect for the Borrower to be treated, or otherwise knowingly take any action that reasonably could cause Borrower to become taxable, as a corporation for U.S. federal income tax purposes; fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Agent(acting at the direction of the Required Lenders), amend, modify, terminate or terminate, fail to comply with the provisions of its operating agreement, Formation Documents or fail to observe limited liability company corporate formalities;
(5) ; own any Subsidiary or make any investment Investment in any Person Person, or own any equity interest in any other entity, without the consent of the Administrative Agent and each Purchaser Agent;
(6) acting at the direction of the Required Lenders), except as permitted by this Agreement and for the Lock2021-Box Agreement, 1C SUBI Certificate with respect to the Trust; commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7) , except to the extent contemplated by this Agreement; 109 DOCPROPERTY DOCXDOCID DMS=IManage Format=<<LIB>>/<<NUM>>v<<VER>> \* MERGEFORMAT 4161-9601-3672 incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness Indebtedness to the Secured Parties hereunder or under any other Basic Document or in conjunction with a repayment of all Advances owed to the PurchaserAggregate Unpaids, except for trade payables in the ordinary course of its business; provided, that, provided that such debt is not evidenced by a note and is paid when due;
(8) ; become insolvent not Solvent or generally fail to pay its debts and liabilities from its assets as the same shall become due;
(9) ; fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10) ; provided, however, that the Borrower may be included in Regional Management’s consolidated financial statements for Tax and reporting purposes; seek its dissolution or winding up, in whole or in part; enter into any contract or agreement with any of its principals or Affiliates or any other Person, except as contemplated by this Agreement upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an armsarm’s-length basis with third parties other than such Person;
(11) seek its dissolution or winding up in whole or in part;
(12) Affiliates; fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator or Borrower from any principal or Affiliate thereof or from any other Person;
(13) ; guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(14) ; make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness Indebtedness issued by any other Person (other than cash Permitted Investments and investment-grade securitiesContracts);
(15) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulations;
(16) ; fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (aA) to mislead others as to the identity with which such other party is transacting business, or (bB) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17) ; fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18) ; file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, Insolvency Laws or make an assignment for the benefit of creditors;
(19) except as may be required by the Internal Revenue Code and regulations, share any common logo with or ; hold itself out as or be considered as a department or division of (aA) any of its principals or affiliatesAffiliates, (bB) any Affiliate of a principal or (cC) any other Person;
(20) ; 110 DOCPROPERTY DOCXDOCID DMS=IManage Format=<<LIB>>/<<NUM>>v<<VER>> \* MERGEFORMAT 4161-9601-3672 permit any transfer (whether in any one or more transactions) of any a direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, Borrower unless the Seller Borrower delivers to the Administrative Agent and each Purchaser Agent Lender an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21) opinion; fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person;
(22) , or have its assets listed on the financial statement of any other Person; provided, however, that the Borrower may be included in Regional Management’s consolidated financial statements for Tax and reporting purposes; fail to pay its own liabilities and expenses only out of its own funds;
(23) ; fail to pay or cause to be paid the salaries of its own employees employees, if applicable, in light of its contemplated business operations;
(24) ; acquire the obligations or securities of its Affiliates or stockholders;
(25) ; fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26) ; fail to use separate invoices and checks bearing its own name;
(27) ; pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness Indebtedness to the Secured Parties hereunder;
(28) ; fail at any time to have at least one (1) independent director (an “Independent Director”) who is not and has not been for at least five (5) years a director, officer, employee, trade credit or shareholder (or spouse, parent, sibling or child Manager on its board of the foregoing) of (a) the Servicer, (b) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, or (e) any Affiliate of any principal of the Servicermanagers; provided, however, such Independent Director Manager may be an independent director or manager of another special purpose entity affiliated with the Servicer or Regional Management; fail to ensure that all limited liability company action relating to the selection, maintenance or replacement of the Independent Director are duly authorized by the unanimous vote of the board of directors (including the Independent Director);
(29) to provide that the unanimous consent of all directors managers of the Borrower (including the consent of the Independent DirectorManager) is required for the Seller Borrower to (aA) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolventnot Solvent, (bB) institute or consent to the institution of bankruptcy or insolvency proceedings Insolvency Proceedings against it, (cC) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvencyInsolvency Law, (dD) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the SellerBorrower, (eE) make any assignment for the benefit of the SellerBorrower’s creditors, (fF) admit in writing its inability to pay its debts generally as they become due, due or (gG) take any action in furtherance of any of the foregoing, and shall not make any decisions on any such actions during any period in which there is a vacancy in the Independent Manager position (except with respect to decisions as to the selection of an Independent Manager to fill such vacancy); and
(30) take replace or refrain from taking, appoint any Person as applicable, each an Independent Manager of the activities specified in Borrower (A) who does not satisfy the nondefinition of an Independent Manager and (B) with less than ten days’ prior written notice to the Administrative Agent and each Lender 111 DOCPROPERTY DOCXDOCID DMS=IManage Format=<<LIB>>/<<NUM>>v<<VER>> \* MERGEFORMAT 4161-consolidation opinion 9601-3672 and without an Officer’s Certificate of P▇▇▇▇▇ B▇▇▇▇ LLP, dated as Regional Management that the prospective Independent Manager satisfies the definition of the date hereof, upon which the conclusions expressed therein are based.an Independent Manager;
Appears in 1 contract
Special Purpose Entity. The Seller has not and shall not:
(1i) engage in any business or activity other than the purchase and receipt of Assets Collateral and related assets from the Originator under the Sale Agreement, the sale of Assets Collateral under the Transaction Documents, and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (a) the Assets Collateral and related assets from the Originator under the Sale Agreement and (b) incidental property as may be necessary for the operation of the Seller;
(3iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case first obtaining the consent of the Administrative Agent and each Purchaser Agent;
(4iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Agent, amend, modify, terminate or fail to comply with the provisions of its operating agreement, or fail to observe limited liability company formalities;
(5v) own any Subsidiary or make any investment in any Person without the consent of the Administrative Agent and each Purchaser Agent;
(6vi) except as permitted by this Agreement and the Lock-Box Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7vii) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness to the Secured Parties hereunder or in conjunction with a repayment of all Advances owed to the PurchaserPurchasers, except for trade payables in the ordinary course of its business; provided, that, provided that such debt is not evidenced by a note and is paid when due;
(8) viii) become insolvent or fail to pay its debts and liabilities from its assets as the same shall become due;
(9ix) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10x) enter into any contract or agreement with any Person, except upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than such Person;
(11xi) seek its dissolution or winding up in whole or in part;
(12xii) fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator or any principal or Affiliate thereof or any other Person;
(13xiii) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(14xiv) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securities);
(15xv) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulations;
(16xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity with which such other party is transacting business, or (b) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17xvii) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18xviii) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors;
(19xix) except as may be required by the Internal Revenue Code and regulations, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliates, (b) any Affiliate of a principal or (c) any other Person;
(20xx) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, unless the Seller delivers to the Administrative Agent and each Purchaser Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21xxi) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person;
(22xxii) fail to pay its own liabilities and expenses only out of its own funds;
(23xxiii) fail to pay the salaries of its own employees in light of its contemplated business operations;
(24xxiv) acquire the obligations or securities of its Affiliates or stockholders;
(25xxv) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26xxvi) fail to use separate invoices and checks bearing its own namebank accounts;
(27xxvii) pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness to the Secured Parties hereunder;
(28xxviii) fail at any time to have at least one (1) independent director (an “Independent Director”) who is not and has not been for at least five (5) years a director, officer, employee, trade credit or shareholder (or spouse, parent, sibling or child of the foregoing) of (a) the Servicer, (b) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, or (e) any Affiliate of any principal of the ServicerServicer (an “Independent Director”); provided, however, provided that such Independent Director may be an independent director of another special purpose entity affiliated with the Servicer or fail to ensure that all limited liability company action relating to the selection, maintenance or replacement of the Independent Director are duly authorized by the unanimous vote of the board of directors (including the Independent Director);
(29xxix) to provide that the unanimous consent of all directors (including the consent of the Independent Director) is required for the Seller to (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Seller, (e) make any assignment for the benefit of the Seller’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; and
(30xxx) take or refrain from taking, as applicable, each of the activities specified in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ LLP, dated as of the date hereof, upon which the conclusions expressed therein are based.
Appears in 1 contract
Special Purpose Entity. The Seller Borrower will not (nor has not and shall not:it taken any such action in the past):
(1i) engage in any business or activity other than the purchase and receipt of Assets Receivables and related assets from the Originator under the Sale Second Tier Purchase Agreement, the sale pledge of Assets Receivables and related assets under the Transaction Documents, Basic Documents and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (aA) the Assets Receivables and related assets from the Originator under the Sale Agreement and Second Tier Purchase Agreement, (bB) incidental property as may be necessary for the operation of the Seller;Borrower and (C) cash generated from the foregoing; LEGAL02/42658427v2
(3iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case first obtaining the Administrative Agent’s consent (acting at the direction of the Administrative Agent and each Purchaser AgentRequired Lenders);
(4iv) elect for the Borrower to be treated, or otherwise knowingly take any action that reasonably could cause Borrower to become taxable, as a corporation for U.S. federal income tax purposes;
(v) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Agent(acting at the direction of the Required Lenders), amend, modify, terminate or terminate, fail to comply with the provisions of its operating agreement, Formation Documents or fail to observe limited liability company corporate formalities;
(5vi) own any Subsidiary or make any investment Investment in any Person Person, or own any equity interest in any other entity, without the consent of the Administrative Agent and each Purchaser Agent(acting at the direction of the Required Lenders), except for the 2021-1C SUBI Certificate with respect to the Trust;
(6vii) except as permitted by this Agreement and the Lock-Box Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person, except to the extent contemplated by this Agreement;
(7viii) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness Indebtedness to the Secured Parties hereunder or under any other Basic Document or in conjunction with a repayment of all Advances owed to the PurchaserAggregate Unpaids, except for trade payables in the ordinary course of its business; provided, that, provided that such debt is not evidenced by a note and is paid when due;
(8) ix) become insolvent not Solvent or generally fail to pay its debts and liabilities from its assets as the same shall become due;
(9x) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person; provided, however, that the Borrower may be included in Regional Management’s consolidated financial statements for Tax and reporting purposes;
(10xi) seek its dissolution or winding up, in whole or in part;
(xii) enter into any contract or agreement with any of its principals or Affiliates or any other Person, except as contemplated by this Agreement upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an armsarm’s-length basis with third parties other than such Personits Affiliates;
(11) seek its dissolution or winding up in whole or in part;
(12xiii) fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator or Borrower from any principal or Affiliate thereof or from any other LEGAL02/42658427v2 Person;
(13xiv) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(14xv) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness Indebtedness issued by any other Person (other than cash Permitted Investments and investment-grade securitiesContracts);
(15) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulations;
(16xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (aA) to mislead others as to the identity with which such other party is transacting business, or (bB) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17xvii) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18xviii) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, Insolvency Laws or make an assignment for the benefit of creditors;
(19xix) except as may be required by the Internal Revenue Code and regulations, share any common logo with or hold itself out as or be considered as a department or division of (aA) any of its principals or affiliatesAffiliates, (bB) any Affiliate of a principal or (cC) any other Person;
(20xx) permit any transfer (whether in any one or more transactions) of any a direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, Borrower unless the Seller Borrower delivers to the Administrative Agent and each Purchaser Agent Lender an acceptable non-consolidation opinion and the Administrative Agent consents to such transferopinion;
(21xxi) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person, or have its assets listed on the financial statement of any other Person; provided, however, that the Borrower may be included in Regional Management’s consolidated financial statements for Tax and reporting purposes;
(22xxii) fail to pay its own liabilities and expenses only out of its own funds;
(23xxiii) fail to pay or cause to be paid the salaries of its own employees employees, if applicable, in light of its contemplated business operations;
(24xxiv) acquire the obligations or securities of its Affiliates or stockholders;
(25xxv) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;; LEGAL02/42658427v2
(26xxvi) fail to use separate invoices and checks bearing its own name;
(27xxvii) pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness Indebtedness to the Secured Parties hereunder;
(28xxviii) fail at any time to have at least one (1) independent director (an “Independent Director”) who is not and has not been for at least five (5) years a director, officer, employee, trade credit or shareholder (or spouse, parent, sibling or child Manager on its board of the foregoing) of (a) the Servicer, (b) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, or (e) any Affiliate of any principal of the Servicermanagers; provided, however, such Independent Director Manager may be an independent director or manager of another special purpose entity affiliated with the Servicer or fail to ensure that all limited liability company action relating to the selection, maintenance or replacement of the Independent Director are duly authorized by the unanimous vote of the board of directors (including the Independent Director)Regional Management;
(29xxix) fail to provide that the unanimous consent of all directors managers of the Borrower (including the consent of the Independent DirectorManager) is required for the Seller Borrower to (aA) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolventnot Solvent, (bB) institute or consent to the institution of bankruptcy or insolvency proceedings Insolvency Proceedings against it, (cC) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvencyInsolvency Law, (dD) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the SellerBorrower, (eE) make any assignment for the benefit of the SellerBorrower’s creditors, (fF) admit in writing its inability to pay its debts generally as they become due, due or (gG) take any action in furtherance of any of the foregoing, and shall not make any decisions on any such actions during any period in which there is a vacancy in the Independent Manager position (except with respect to decisions as to the selection of an Independent Manager to fill such vacancy);
(xxx) replace or appoint any Person as an Independent Manager of the Borrower (A) who does not satisfy the definition of an Independent Manager and (B) with less than ten days’ prior written notice to the Administrative Agent and each Lender and without an Officer’s Certificate of Regional Management that the prospective Independent Manager satisfies the definition of an Independent Manager;
(xxxi) (A) amend, restate, supplement or otherwise modify its Formation Documents in any respect that would impair its ability to comply with the Basic Documents or (B) fail to require in its limited liability company agreement that no Independent Manager may be replaced or appointed with less than ten days’ prior written notice to the Administrative Agent and each Lender and a certification by Regional Management that the prospective Independent Manager satisfies the definition of an Independent Manager; and
(30xxxii) not take or refrain from taking, as applicable, each of the activities specified in the non-consolidation opinion of P▇▇▇▇▇▇ B▇▇▇▇ & Bird, LLP, dated as of the date hereofClosing Date, upon which the conclusions expressed therein are based.
Appears in 1 contract
Special Purpose Entity. The Seller Borrower will not (nor has not and shall not:it taken any such action in the past):
(1i) engage in any business or activity other than the purchase and receipt of Assets Receivables and related assets from the Originator under the Sale Second Tier Purchase Agreement, the sale pledge of Assets Receivables and related assets under the Transaction Documents, Basic Documents and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (aA) the Assets Receivables and related assets from the Originator under the Sale Agreement and Second Tier Purchase Agreement, (bB) incidental property as may be necessary for the operation of the Seller;Borrower and (C) cash generated from the foregoing; LEGAL02/41783784v7
(3iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case first obtaining the Administrative Agent’s consent (acting at the direction of the Administrative Agent and each Purchaser AgentRequired Lenders);
(4iv) elect for the Borrower to be treated, or otherwise knowingly take any action that reasonably could cause Borrower to become taxable, as a corporation for U.S. federal income tax purposes;
(v) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Agent(acting at the direction of the Required Lenders), amend, modify, terminate or terminate, fail to comply with the provisions of its operating agreement, Formation Documents or fail to observe limited liability company corporate formalities;
(5vi) own any Subsidiary or make any investment Investment in any Person Person, or own any equity interest in any other entity, without the consent of the Administrative Agent and each Purchaser Agent(acting at the direction of the Required Lenders), except for the 2021-1C SUBI Certificate with respect to the Trust;
(6vii) except as permitted by this Agreement and the Lock-Box Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person, except to the extent contemplated by this Agreement;
(7viii) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness Indebtedness to the Secured Parties hereunder or under any other Basic Document or in conjunction with a repayment of all Advances owed to the PurchaserAggregate Unpaids, except for trade payables in the ordinary course of its business; provided, that, provided that such debt is not evidenced by a note and is paid when due;
(8) ix) become insolvent not Solvent or generally fail to pay its debts and liabilities from its assets as the same shall become due;
(9x) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person; provided, however, that the Borrower may be included in Regional Management’s consolidated financial statements for Tax and reporting purposes;
(10xi) seek its dissolution or winding up, in whole or in part;
(xii) enter into any contract or agreement with any of its principals or Affiliates or any other Person, except as contemplated by this Agreement upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an armsarm’s-length basis with third parties other than such Personits Affiliates;
(11) seek its dissolution or winding up in whole or in part;
(12xiii) fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator or Borrower from any principal or Affiliate thereof or from any other LEGAL02/41783784v7 Person;
(13xiv) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(14xv) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness Indebtedness issued by any other Person (other than cash Permitted Investments and investment-grade securitiesContracts);
(15) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulations;
(16xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (aA) to mislead others as to the identity with which such other party is transacting business, or (bB) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17xvii) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18xviii) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, Insolvency Laws or make an assignment for the benefit of creditors;
(19xix) except as may be required by the Internal Revenue Code and regulations, share any common logo with or hold itself out as or be considered as a department or division of (aA) any of its principals or affiliatesAffiliates, (bB) any Affiliate of a principal or (cC) any other Person;
(20xx) permit any transfer (whether in any one or more transactions) of any a direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, Borrower unless the Seller Borrower delivers to the Administrative Agent and each Purchaser Agent Lender an acceptable non-consolidation opinion and the Administrative Agent consents to such transferopinion;
(21xxi) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person, or have its assets listed on the financial statement of any other Person; provided, however, that the Borrower may be included in Regional Management’s consolidated financial statements for Tax and reporting purposes;
(22xxii) fail to pay its own liabilities and expenses only out of its own funds;
(23xxiii) fail to pay or cause to be paid the salaries of its own employees employees, if applicable, in light of its contemplated business operations;
(24xxiv) acquire the obligations or securities of its Affiliates or stockholders;
(25xxv) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;; LEGAL02/41783784v7
(26xxvi) fail to use separate invoices and checks bearing its own name;
(27xxvii) pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness Indebtedness to the Secured Parties hereunder;
(28xxviii) fail at any time to have at least one (1) independent director (an “Independent Director”) who is not and has not been for at least five (5) years a director, officer, employee, trade credit or shareholder (or spouse, parent, sibling or child Manager on its board of the foregoing) of (a) the Servicer, (b) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, or (e) any Affiliate of any principal of the Servicermanagers; provided, however, such Independent Director Manager may be an independent director or manager of another special purpose entity affiliated with the Servicer or fail to ensure that all limited liability company action relating to the selection, maintenance or replacement of the Independent Director are duly authorized by the unanimous vote of the board of directors (including the Independent Director)Regional Management;
(29xxix) fail to provide that the unanimous consent of all directors managers of the Borrower (including the consent of the Independent DirectorManager) is required for the Seller Borrower to (aA) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolventnot Solvent, (bB) institute or consent to the institution of bankruptcy or insolvency proceedings Insolvency Proceedings against it, (cC) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvencyInsolvency Law, (dD) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the SellerBorrower, (eE) make any assignment for the benefit of the SellerBorrower’s creditors, (fF) admit in writing its inability to pay its debts generally as they become due, due or (gG) take any action in furtherance of any of the foregoing, and shall not make any decisions on any such actions during any period in which there is a vacancy in the Independent Manager position (except with respect to decisions as to the selection of an Independent Manager to fill such vacancy);
(xxx) replace or appoint any Person as an Independent Manager of the Borrower (A) who does not satisfy the definition of an Independent Manager and (B) with less than ten days’ prior written notice to the Administrative Agent and each Lender and without an Officer’s Certificate of Regional Management that the prospective Independent Manager satisfies the definition of an Independent Manager;
(xxxi) (A) amend, restate, supplement or otherwise modify its Formation Documents in any respect that would impair its ability to comply with the Basic Documents or (B) fail to require in its limited liability company agreement that no Independent Manager may be replaced or appointed with less than ten days’ prior written notice to the Administrative Agent and each Lender and a certification by Regional Management that the prospective Independent Manager satisfies the definition of an Independent Manager; and
(30xxxii) not take or refrain from taking, as applicable, each of the activities specified in the non-consolidation opinion of P▇▇▇▇▇▇ B▇▇▇▇ & Bird, LLP, dated as of the date hereofClosing Date, upon which the conclusions expressed therein are based.
Appears in 1 contract
Special Purpose Entity. The Seller Borrower will not (nor has not and shall not:it taken any such action in the past):
(1i) engage in any business or activity other than the purchase and receipt of Assets Receivables and related assets from the Originator under the Sale Second Tier Purchase 105 LEGAL02/42338653v2 Agreement, the sale pledge of Assets Receivables and related assets under the Transaction Documents, Basic Documents and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (aA) the Assets Receivables and related assets from the Originator under the Sale Agreement and Second Tier Purchase Agreement, (bB) incidental property as may be necessary for the operation of the SellerBorrower and (C) cash generated from the foregoing;
(3iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case first obtaining the Administrative Agent’s consent (acting at the direction of the Administrative Agent and each Purchaser AgentRequired Lenders);
(4iv) elect for the Borrower to be treated, or otherwise knowingly take any action that reasonably could cause Borrower to become taxable, as a corporation for U.S. federal income tax purposes;
(v) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Agent(acting at the direction of the Required Lenders), amend, modify, terminate or terminate, fail to comply with the provisions of its operating agreement, Formation Documents or fail to observe limited liability company corporate formalities;
(5vi) own any Subsidiary or make any investment Investment in any Person Person, or own any equity interest in any other entity, without the consent of the Administrative Agent and each Purchaser Agent(acting at the direction of the Required Lenders), except for the 2021-1C SUBI Certificate with respect to the Trust;
(6vii) except as permitted by this Agreement and the Lock-Box Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person, except to the extent contemplated by this Agreement;
(7viii) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness Indebtedness to the Secured Parties hereunder or under any other Basic Document or in conjunction with a repayment of all Advances owed to the PurchaserAggregate Unpaids, except for trade payables in the ordinary course of its business; provided, that, provided that such debt is not evidenced by a note and is paid when due;
(8) ix) become insolvent not Solvent or generally fail to pay its debts and liabilities from its assets as the same shall become due;
(9x) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person; provided, however, that the Borrower may be included in Regional Management’s consolidated financial statements for Tax and reporting purposes;
(10xi) seek its dissolution or winding up, in whole or in part; 106 LEGAL02/42338653v2
(xii) enter into any contract or agreement with any of its principals or Affiliates or any other Person, except as contemplated by this Agreement upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an armsarm’s-length basis with third parties other than such Personits Affiliates;
(11) seek its dissolution or winding up in whole or in part;
(12xiii) fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator or Borrower from any principal or Affiliate thereof or from any other Person;
(13xiv) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(14xv) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness Indebtedness issued by any other Person (other than cash Permitted Investments and investment-grade securitiesContracts);
(15) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulations;
(16xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (aA) to mislead others as to the identity with which such other party is transacting business, or (bB) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17xvii) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18xviii) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, Insolvency Laws or make an assignment for the benefit of creditors;
(19xix) except as may be required by the Internal Revenue Code and regulations, share any common logo with or hold itself out as or be considered as a department or division of (aA) any of its principals or affiliatesAffiliates, (bB) any Affiliate of a principal or (cC) any other Person;
(20xx) permit any transfer (whether in any one or more transactions) of any a direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, Borrower unless the Seller Borrower delivers to the Administrative Agent and each Purchaser Agent Lender an acceptable non-consolidation opinion and the Administrative Agent consents to such transferopinion;
(21xxi) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person, or have its assets listed on the financial statement of any other Person; provided, however, that the Borrower may be included in Regional Management’s consolidated financial statements for Tax and reporting purposes;
(22xxii) fail to pay its own liabilities and expenses only out of its own funds;; 107 LEGAL02/42338653v2
(23xxiii) fail to pay or cause to be paid the salaries of its own employees employees, if applicable, in light of its contemplated business operations;
(24xxiv) acquire the obligations or securities of its Affiliates or stockholders;
(25xxv) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26xxvi) fail to use separate invoices and checks bearing its own name;
(27xxvii) pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness Indebtedness to the Secured Parties hereunder;
(28xxviii) fail at any time to have at least one (1) independent director (an “Independent Director”) who is not and has not been for at least five (5) years a director, officer, employee, trade credit or shareholder (or spouse, parent, sibling or child Manager on its board of the foregoing) of (a) the Servicer, (b) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, or (e) any Affiliate of any principal of the Servicermanagers; provided, however, such Independent Director Manager may be an independent director or manager of another special purpose entity affiliated with the Servicer or fail to ensure that all limited liability company action relating to the selection, maintenance or replacement of the Independent Director are duly authorized by the unanimous vote of the board of directors (including the Independent Director)Regional Management;
(29xxix) fail to provide that the unanimous consent of all directors managers of the Borrower (including the consent of the Independent DirectorManager) is required for the Seller Borrower to (aA) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolventnot Solvent, (bB) institute or consent to the institution of bankruptcy or insolvency proceedings Insolvency Proceedings against it, (cC) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvencyInsolvency Law, (dD) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the SellerBorrower, (eE) make any assignment for the benefit of the SellerBorrower’s creditors, (fF) admit in writing its inability to pay its debts generally as they become due, due or (gG) take any action in furtherance of any of the foregoing; and, and shall not make any decisions on any such actions during any period in which there is a vacancy in the Independent Manager position (except with respect to decisions as to the selection of an Independent Manager to fill such vacancy);
(30xxx) replace or appoint any Person as an Independent Manager of the Borrower (A) who does not satisfy the definition of an Independent Manager and (B) with less than ten days’ prior written notice to the Administrative Agent and each Lender and without an Officer’s Certificate of Regional Management that the prospective Independent Manager satisfies the definition of an Independent Manager;
(A) amend, restate, supplement or otherwise modify its Formation Documents in any respect that would impair its ability to comply with the Basic Documents or (B) fail to require in its limited liability company agreement that no Independent Manager may be replaced or appointed with less than ten days’ prior written notice to the Administrative Agent and each Lender and a certification by Regional Management that the prospective Independent Manager satisfies the definition of an Independent Manager; and 108 LEGAL02/42338653v2
(xxxii) not take or refrain from taking, as applicable, each of the activities specified in the non-consolidation opinion of P▇▇▇▇▇▇ B▇▇▇▇ & Bird, LLP, dated as of the date hereofClosing Date, upon which the conclusions expressed therein are based.
Appears in 1 contract
Special Purpose Entity. The Seller has not and shall not:
(1i) engage in any business or activity other than the purchase and receipt of Assets Collateral and related assets from the Originator under the Sale Agreement, the sale of Assets Collateral under the Transaction Documents, and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (a) the Assets Collateral and related assets from the Originator under the Sale Agreement and (b) incidental property as may be necessary for the operation of the Seller;
(3iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case first obtaining the consent of the Administrative Agent and each Purchaser Agent;
(4iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Agent, amend, modify, terminate or fail to comply with the provisions of its operating agreement, or fail to observe limited liability company formalities;
(5v) own any Subsidiary or make any investment in any Person without the consent of the Administrative Agent and each Purchaser Agent;
(6vi) except as permitted by this Agreement and the Lock-Box Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7vii) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness to the Secured Parties hereunder or in conjunction with a repayment of all Advances owed to the PurchaserPurchasers, except for trade payables in the ordinary course of its business; provided, that, provided that such debt is not evidenced by a note and is paid when due;
(8) viii) become insolvent or fail to pay its debts and liabilities from its assets as the same shall become due;
(9ix) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10x) enter into any contract or agreement with any Person, except upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than such Person;
(11xi) seek its dissolution or winding up in whole or in part;
(12xii) fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator or any principal or Affiliate thereof or any other Person;
(13xiii) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(14xiv) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securities);
(15xv) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulations;
(16xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity with which such other party is transacting business, or (b) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17xvii) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18xviii) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors;
(19xix) except as may be required by the Internal Revenue Code and regulations, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliates, (b) any Affiliate of a principal or (c) any other Person;
(20xx) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, unless the Seller delivers to the Administrative Agent and each Purchaser Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21xxi) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person;
(22xxii) fail to pay its own liabilities and expenses only out of its own funds;
(23xxiii) fail to pay the salaries of its own employees in light of its contemplated business operations;
(24xxiv) acquire the obligations or securities of its Affiliates or stockholders;
(25xxv) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26xxvi) fail to use separate invoices and checks bearing its own name;
(27xxvii) pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness to the Secured Parties hereunder;
(28xxviii) fail at any time to have at least one (1) independent director (an “Independent Director”) who is not and has not been for at least five (5) years a director, officer, employee, trade credit or shareholder (or spouse, parent, sibling or child of the foregoing) of (a) the Servicer, (b) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, or (e) any Affiliate of any principal of the ServicerServicer (an “Independent Director”); provided, however, provided that such Independent Director may be an independent director of another special purpose entity affiliated with the Servicer or fail to ensure that all limited liability company action relating to the selection, maintenance or replacement of the Independent Director are duly authorized by the unanimous vote of the board of directors (including the Independent Director);
(29xxix) to provide that the unanimous consent of all directors (including the consent of the Independent Director) is required for the Seller to (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Seller, (e) make any assignment for the benefit of the Seller’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; and
(30xxx) take or refrain from taking, as applicable, each of the activities specified in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ LLP, dated as of the date hereof, upon which the conclusions expressed therein are based.
Appears in 1 contract
Special Purpose Entity. The Seller Borrower has not and shall not:
(1i) engage in any business or activity other than the purchase purchase, receipt and receipt management of Assets Collateral, the transfer and related assets from pledge of Collateral pursuant to the Originator under terms of the Sale AgreementTransaction Documents, the sale of Assets Collateral as permitted hereunder, the entry into and the performance under the Transaction Documents, Documents and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (a) the Assets and related assets from the Originator under the Sale Agreement and Collateral or (b) incidental property as may be necessary for the operation of the SellerBorrower and the performance of its obligations under the Transaction Documents;
(3iii) merge into or consolidate with any Person or dissolve, wind-up, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure(other than in accordance with the provisions hereof), without in each case first obtaining the prior written consent of the Administrative Agent and each Purchaser Agent, or except as permitted by this Agreement, change its legal structure, or jurisdiction of formation;
(4iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Agent, amend, modify, terminate or fail to comply with the provisions of its operating agreementagreement except as otherwise permitted pursuant to Section 5.2(h), or fail to observe limited liability company formalities;
(5v) form, acquire or own any Subsidiary Subsidiary, own any equity interest in any other entity (other than any Equity Security received in exchange for a defaulted Loan or portion thereof in connection with an insolvency, bankruptcy, reorganization, debt restructuring or workout of the Obligor thereof), or make any investment Investment in any Person (other than Permitted Investments) without the prior written consent of the Administrative Agent and each Purchaser Agent;
(6vi) except as permitted by this Agreement and the Lock-Box Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7vii) incur any debtIndebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness Indebtedness to the Secured Parties hereunder or in conjunction with a repayment of all Advances owed to the Purchaser, except for trade payables in Lenders and a termination of all the ordinary course of its business; provided, that, such debt is not evidenced by a note and is paid when dueCommitments;
(8) become insolvent or viii) fail to pay its debts and liabilities from its assets as the same shall become due;
(9ix) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10x) enter into any contract or agreement with any Person, except (a) the Transaction Documents and (b) other contracts or agreements that are upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than such Person;
(11xi) seek its dissolution dissolution, termination, liquidation or winding up in whole or in part;
(12xii) fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator or any principal or Affiliate thereof Borrower, the Transferor or any other Person;
(13xiii) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(14) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securities);
(15) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulations;
(16xiv) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity of the Person with which such other party is transacting business, or (b) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17xv) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18xvi) file divide or consent to permit any division of the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditorsBorrower;
(19xvii) except as may be required or permitted by the Internal Revenue Code and regulationsregulations or other applicable state or local tax law, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliatesAffiliates, (b) any Affiliate of a principal or (c) any other Person;
(20) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, unless the Seller delivers to the Administrative Agent and each Purchaser Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21xviii) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate provided that (a) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (b) such assets shall also be listed on the Borrower’s own separate balance sheet;
(22xix) fail to pay its own liabilities and expenses only out of its own funds;
(23xx) fail to maintain a sufficient number of employees, if any, in light of its contemplated business operations or to pay the salaries of its own employees in light of its contemplated business operationsemployees, if any;
(24xxi) acquire the obligations of or securities of issued by its Affiliates or stockholdersmembers, it being understood that this clause (xxi) shall not prevent the Borrower from acquiring Loans from the Transferor;
(25xxii) guarantee any obligation of any person, including an Affiliate;
(xxiii) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26xxiv) fail to use separate invoices and checks bearing its own name;
(27xxv) pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness to the Secured Parties hereunder;
(28xxvi) (A) fail at any time to have at least one (1) independent director (an the “Independent Director”) which shall be a natural Person approved by the Administrative Agent in its sole discretion, which director must, in each such instance, be a Person who has prior experience as an independent director, independent manager or independent member with at least three (3) years of employment experience and who is provided by ▇▇▇▇▇▇▇ & Associates, CT Corporation, Corporation Service Company, Global Securitization Services, National Registered Agents, Inc., Wilmington Trust Company, ▇▇▇▇▇▇▇ Management Company, Lord Securities Corporation or, if none of those companies is then providing professional Independent Directors, another nationally recognized company reasonably approved by the Lenders, in each case that is not an Affiliate of the Borrower and that provides professional independent directors and other corporate services in the ordinary course of its business, and which individual is duly appointed as an Independent Director and is not, and has never been, and will not been for at least five while serving as Independent Director be, any of the following: (5w) years a member, partner, equityholder, manager, director, officer or employee of the Borrower or any of its equityholders or Affiliates (other than as an Independent Director of the Borrower or any of its equityholders or Affiliates that is required by a creditor to be a single purpose bankruptcy remote entity); (x) a creditor, supplier or service provider (including provider of professional services) to the Borrower or any of its equityholders or Affiliates (other than a nationally recognized company that routinely provides professional Independent Directors and other corporate services to the Borrower or any of its equityholders or Affiliates in the ordinary course of business); (y) a family member of any such member, partner, equityholder, manager, director, officer, employee, trade credit creditor, supplier or shareholder service provider; or (z) a Person that controls (whether directly, indirectly or spouse, parent, sibling or child of the foregoingotherwise) any of (a) the Servicerw), (bx) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, or (ey) any Affiliate of any principal of the Servicerabove; provided, however, such Independent Director may be an independent director of another special purpose entity affiliated with the Servicer or (B) fail to ensure that all limited liability company action relating to the selection, maintenance or replacement of the Independent Director are duly authorized by during the unanimous vote Covenant Compliance Period shall require the written consent of the board Administrative Agent. A natural person who otherwise satisfies the foregoing definition and satisfies clause (w) above by reason of directors (including being the Independent Director)Director of a “special purpose entity” affiliated with the Borrower shall be qualified to serve as an Independent Director of the Borrower;
(29xxvii) fail to provide in its Governing Document that the unanimous consent of all directors (including members and the consent of the Independent Director) is Director are required for the Seller Borrower to (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against itthe Borrower, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, provisional liquidator assignee, trustee, sequestrator, custodian custodian, restructuring officer or any similar official for the SellerBorrower, (e) make any assignment for the benefit of the SellerBorrower’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; and
(30) take or refrain from taking, as applicable, each of the activities specified in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ LLP, dated as of the date hereof, upon which the conclusions expressed therein are based.,
Appears in 1 contract
Sources: Loan and Security Agreement (PennantPark Private Income Fund)
Special Purpose Entity. The Seller Borrower has not and shall not:
(1i) engage in any business or activity other than the purchase and receipt of Assets Collateral and related assets from the Originator under the Sale Agreementassets, the sale Grant of Assets Collateral under the Transaction Documents, and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (a) the Assets Collateral and related assets from the Originator under the Sale Agreement assets, and (b) incidental property as may be necessary for the operation of the SellerBorrower;
(3iii) except as otherwise expressly permitted in this Agreement, merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case first obtaining the consent of the Administrative Agent and each Purchaser Lender Agent;
(4iv) except as otherwise expressly permitted in this Agreement, fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Lender Agent, amend, modify, terminate or fail to comply with the provisions of Sections 1.05, 1.07, 1.08, 4.02(b) and 10.01 of its operating agreementagreement and any of the defined terms in Section 1.01 of its operating agreement that are contained in any of the above-mentioned sections thereof, or fail to observe limited liability company formalities;
(5v) own any Subsidiary or make any investment in any Person without the consent of the Administrative Agent and each Purchaser Lender Agent;
(6vi) except as permitted by this Agreement and the Lock-Box Intercreditor Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7vii) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) indebtedness to the Secured Parties hereunder hereunder, (B) under the Borrower ISDA Guaranty or (C) in conjunction with a repayment of all Advances owed to the PurchaserLenders, except for trade payables in the ordinary course of its business; provided, that, provided that such debt is not evidenced by a note and is paid when due;
(8) viii) become insolvent or fail to pay its debts and liabilities from its assets as the same shall become due;
(9ix) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10x) enter into any contract or agreement with any PersonAffiliate, except upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an armsarm’s-length basis with unrelated third parties other than such Personparties;
(11xi) seek its dissolution or winding up in whole or in part;
(12xii) fail to correct any known misunderstandings regarding the separate identity of Seller Borrower and the Originator or any principal or Affiliate thereof or any other Person;
(13xiii) guarantee, become obligated for, or hold itself out to be responsible for the debt of another PersonPerson other than under the Borrower ISDA Guaranty;
(14xiv) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash the Loans, Cash, Permitted Investments and investment-grade securitiesany Hedge Transaction);
(15xv) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulationsregulations (without limiting the foregoing, it is acknowledged and agreed that a single member limited liability company is a disregarded entity for purposes of the Code);
(16xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity with which such other party is transacting business, or (b) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17xvii) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18xviii) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors;
(19xix) except as may be required by the Internal Revenue Code and regulations, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliatesAffiliates, (b) any Affiliate of a principal or (c) any other Person;
(20xx) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller Borrower to the extent it has the ability to control the same, other than a pledge of the membership interests in the Borrower to secure the Fortress Notes pursuant to a pledge agreement approved by the Administrative Agent prior to the Closing Date, unless the Seller Borrower delivers to the Administrative Agent and each Purchaser Lender Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21xxi) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person (without limiting the foregoing, it is acknowledged that for accounting purposes, the Borrower may be consolidated with another Person as required by GAAP and included in such Person’s consolidated financial statements);
(22xxii) fail to pay its own liabilities and expenses only out of its own funds;
(23xxiii) fail to pay the salaries of its own employees employees, if any, in light of its contemplated business operations;
(24xxiv) acquire the obligations of or securities of issued by its Affiliates or stockholdersmembers;
(25xxv) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26xxvi) fail to use separate invoices and checks bearing its own name;
(27xxvii) pledge or permit the pledge of its assets for the benefit of any other Person, other than with respect to the payment of the indebtedness to the Secured Parties hereunder;
(28xxviii) (A) fail at any time to have at least one (1) independent director (an “Independent Director”) who Manager except while a vacancy is not and has not been for at least five (5) years a director, officer, employee, trade credit or shareholder (or spouse, parent, sibling or child of being filled pursuant to the foregoing) of (a) the Servicer, (b) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, Borrower’s organizational documents or (eB) any Affiliate of any principal of the Servicer; provided, however, such Independent Director may be an independent director of another special purpose entity affiliated with the Servicer or fail to ensure that all limited liability company action actions relating to the selection, maintenance selection or replacement of the Independent Director Manager are duly authorized by and in accordance with the unanimous vote of the board of directors (including the Independent Director)Borrower’s organizational documents;
(29xxix) fail to provide that the unanimous consent of all directors its managers (including the consent of the Independent DirectorManager) is required for the Seller Borrower to (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the SellerBorrower, (e) make any assignment for the benefit of the SellerBorrower’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; and
(30xxx) take or refrain from taking, as applicable, each of the activities specified in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ Dechert LLP, dated as of the date hereofClosing Date, upon which the conclusions expressed therein are based.
Appears in 1 contract
Sources: Loan and Servicing Agreement (NewStar Financial, Inc.)
Special Purpose Entity. The Seller Borrower has not not, and shall not:
(1a) engage in any business or activity other than the purchase acquisition, ownership, operation and receipt maintenance of Assets the Leases and related assets from the Originator under the Sale Agreement, the sale of Assets under the Transaction Documentsother Collateral, and such other activities as are incidental thereto, provided, that for the avoidance of doubt, Borrower hereby agrees that it shall not originate Leases;
(2b) acquire or own any material assets other than the Leases and the other Collateral (aincluding the goods (including, but not limited to, the Inventory) the Assets purchased from Holdings), and related assets from the Originator under the Sale Agreement and (b) such incidental personal property as may be necessary for the operation of the SellerLeases and the other Collateral;
(3c) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case first obtaining Agent’s consent and, in the case of the dissolution or liquidation of the Borrower, without the consent of the Administrative Agent and each Purchaser Agentindependent manager;
(4d) fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, and qualifications to do business, or without the prior written consent of the Administrative Agent and each Purchaser Agent, amend, modify, terminate or fail to comply in any material respect with the provisions of its partnership agreement, certificate of limited partnership, bylaws, articles of incorporation, operating agreement, articles of organization, or fail to observe limited liability company formalitiesother similar organizational documents, as the case may be;
(5e) own any Subsidiary or make any investment in in, any Person without the consent of the Administrative Agent and each Purchaser Agent;
(6f) except as permitted by this Agreement and the Lock-Box Agreement, commingle its assets with the assets of any of its members, general or limited partners, shareholders, Affiliates, principals or of any other PersonPerson other than payments received directly by the Servicer in respect of Pledged Leases that are transferred to the Collateral Account in accordance with this Agreement;
(7g) incur any debtindebtedness for borrowed money, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness to the Secured Parties hereunder or for borrowed money) except as permitted in conjunction with a repayment of all Advances owed to the Purchaser, except for trade payables in the ordinary course of its business; provided, that, such debt is not evidenced by a note and is paid when dueSection 7.1 hereof;
(8) h) become insolvent or fail to pay its debts and liabilities from its assets as the same shall become due;
(9i) fail to maintain its records, books of account accounts and bank accounts separate and apart from those of the members, partners, shareholders, principals and Affiliates of Holdings and Servicer or any other Person;
(10j) other than any Loan Documents or the Purchase and Sale Agreement and or as otherwise required by the Loan Documents, without the consent of the Agent, enter into any contract or agreement with any Personmember, general or limited partner, shareholder, principal or Affiliate of Borrower, or Holdings, or any member, general or limited partner, shareholder, principal or Affiliate of any of the foregoing, except upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than such Personany member, general or limited partner, shareholder, principal or Affiliate of Borrower or Holdings, or any member, general or limited partner, shareholder or Affiliate of any of the foregoing;
(11k) seek its the dissolution or winding up in whole whole, or in part, of Borrower;
(12l) fail to correct any known misunderstandings regarding the separate identity of Seller and Borrower, as applicable (provided that the Originator or any principal or Affiliate thereof or any other Personforegoing shall not preclude the Servicer from performing its duties in its own name with respect to the Pledged Leases without disclosing the name of the Borrower);
(13m) guarantee, become obligated for, or hold itself out to be responsible for the debt debts of another Person;
(14n) other than owning the Leases and other Collateral (including the Inventory) purchased from Holdings pursuant to the Purchase and Sale Agreement, respectively and any extensions, waivers, amendments or other modifications of such Leases otherwise permitted hereunder, make or extend any loan financial accommodations or advances leases to any third party, including any member, general or limited partner, shareholder, principal or AffiliateAffiliate of Borrower, Servicer or Holdings, or hold evidence any member, general or limited partner, shareholder, principal or Affiliate of indebtedness issued by any other Person (other than cash and investment-grade securities)of the foregoing;
(15) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulations;
(16o) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (ai) to mislead others as to the identity with which such other party is transacting businessbusiness (provided that the foregoing shall not preclude the Servicer from performing its duties in its own name with respect to the Pledged Leases without disclosing the name of the Borrower), or (bii) to suggest that it Borrower is responsible for the debts of any third party (including any member, general or limited partner, shareholder, principal or Affiliate of its principals Borrower, Servicer or AffiliatesHoldings, or any member, general or limited partner, shareholder, principal or Affiliate of any of the foregoing);
(17p) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business businesses of its size and character and in light of its contemplated business operations;
(18q) except for invoicing for collections and servicing of Leases, share any common logo with or hold itself out as or be considered as a department or division of (i) any general or limited partner, shareholder, principal, member or Affiliate of Borrower, (ii) any Affiliate of a general or limited partner, shareholder, principal or member of Borrower, or (iii) any other Person (provided that the foregoing shall not preclude the Servicer from performing its duties in its own name with respect to the Pledged Leases without disclosing the name of the Borrower);
(r) without the unanimous written consent of its directors, managers or managing members, or general or limited partners, as the case may be, and the consent of any independent directors or independent managers required herein, file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors;; or
(19) except as may be required by the Internal Revenue Code and regulations, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliates, (b) any Affiliate of a principal or (c) any other Person;
(20) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, unless the Seller delivers to the Administrative Agent and each Purchaser Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person;
(22) fail to pay its own liabilities and expenses only out of its own funds;
(23) fail to pay the salaries of its own employees in light of its contemplated business operations;
(24) acquire the obligations or securities of its Affiliates or stockholders;
(25) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26) fail to use separate invoices and checks bearing its own name;
(27) pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness to the Secured Parties hereunder;
(28s) fail at any time to have at least one (1) of its managers be an independent director (an “Independent Director”) manager who is not and has not been for at least five (5) years a director, manager, officer, employee, trade credit creditor, supplier or shareholder (or spouse, parent, sibling or child of the foregoing) of (aor a Person who directly or indirectly controls) (i) the ServicerBorrower, (bii) the Seller, Holdings or (c) any principal of the Servicer, (diii) any Affiliate of the ServicerBorrower, Holdings or (e) any Affiliate of any general or limited partner, shareholder, principal or member of the Servicer; providedBorrower or Holdings.
(t) Borrower shall further comply with, however, such Independent Director may be an independent director of another special any further customary requirements for a single purpose entity affiliated with the Servicer or fail to ensure that all limited liability company action relating to the selection, maintenance or replacement of the Independent Director are duly authorized by the unanimous vote of the board of directors (including the Independent Director);
(29) to provide that the unanimous consent of all directors (including the consent of the Independent Director) is required for the Seller to (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment arising out of a receiver, liquidator, assignee, trustee, sequestrator, custodian change in law or any similar official for the Seller, (e) make any assignment for the benefit of the Seller’s creditors, (f) admit industry practice as Agent may require from time to time in writing its inability sole discretion by notice to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; and
(30) take or refrain from taking, as applicable, each of the activities specified in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ LLP, dated as of the date hereof, upon which the conclusions expressed therein are basedBorrower.
Appears in 1 contract
Sources: Loan and Security Agreement (Katapult Holdings, Inc.)
Special Purpose Entity. The Seller Borrower has not and shall not:
(1i) engage in any business or activity other than the purchase and receipt of Assets Collateral and related assets from the Originator under the Sale Agreementassets, the sale Grant of Assets Collateral under the Transaction Documents, and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (aA) the Assets Collateral and related assets from assets, (B) the Originator under the Sale Agreement ownership interests in any REO Affiliate and (bC) incidental property as may be necessary for the operation of the SellerBorrower;
(3iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case first obtaining the consent of the Administrative Agent and each Purchaser Lender Agent;
(4iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Lender Agent, amend, modify, terminate or fail to comply with the provisions of Sections 1.05, 1.07, 1.08, 4.02(b) and 10.01 of its operating agreementagreement and any of the defined terms in Section 1.01 of its operating agreement that are contained in any of the above-mentioned sections thereof, or fail to observe limited liability company formalities;
(5v) own any Subsidiary or make any investment in any Person other than an REO Affiliate without the consent of the Administrative Agent and each Purchaser Lender Agent;
(6vi) except as permitted by this Agreement and the Lock-Box Intercreditor Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7vii) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness to the Secured Parties hereunder or in conjunction with a repayment of all Advances owed to the PurchaserLenders, except for trade payables in the ordinary course of its business; provided, that, provided that such debt is not evidenced by a note and is paid when due;
(8) viii) become insolvent or fail to pay its debts and liabilities from its assets as the same shall become due;
(9ix) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10x) enter into any contract or agreement with any PersonAffiliate, except upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an arms-length basis with unrelated third parties other than such Personparties;
(11xi) seek its dissolution or winding up in whole or in part;
(12xii) fail to correct any known misunderstandings regarding the separate identity of Seller Borrower and the Originator or any principal or Affiliate thereof or any other Person;
(13xiii) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(14xiv) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securitiesthe Loans, Cash, Permitted Investments and, with the prior written consent of the Administrative Agent, any loan to an REO Affiliate of the type described in clause (b) of the definition thereof);
(15xv) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulationsregulations (without limiting the foregoing, it is acknowledged and agreed that a single member limited liability company is a disregarded entity for purposes of the Code);
(16xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (aA) to mislead others as to the identity with which such other party is transacting business, or (bB) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17xvii) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18xviii) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors;
(19xix) except as may be required by the Internal Revenue Code and regulations, share any common logo with or hold itself out as or be considered as a department or division of (aA) any of its principals or affiliates, (bB) any Affiliate of a principal or (cC) any other Person;
(20xx) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller Borrower to the extent it has the ability to control the same, unless the Seller Borrower delivers to the Administrative Agent and each Purchaser Lender Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21xxi) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person (without limiting the foregoing, it is acknowledged that for accounting purposes, the Originator may be consolidated with another Person as required by GAAP and included in such Person’s consolidated financial statements);
(22xxii) fail to pay its own liabilities and expenses only out of its own funds;
(23xxiii) fail to pay the salaries of its own employees employees, if any, in light of its contemplated business operations;
(24xxiv) acquire the obligations or securities of its Affiliates or stockholdersstockholders except for obligations or securities of any REO Affiliate and any loan to an REO Affiliate of the type described in clause (b) of the definition thereof with the prior written consent of the Administrative Agent;
(25xxv) guarantee any obligation of any person, including an Affiliate;
(xxvi) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26xxvii) fail to use separate invoices and checks bearing its own name;
(27xxviii) pledge or permit the pledge of its assets for the benefit of any other Person, other than with respect to the payment of the indebtedness to the Secured Parties hereunder;
(28xxix) fail at any time to have at least one (1) independent director manager (an “Independent DirectorManager”) who is not and has not been for at least five (5) years currently a director, officer, employee, trade credit creditor, shareholder, manager or shareholder member (or spouse, parent, sibling or child of the foregoing) of (aA) the ServicerOriginator, (bB) the SellerBorrower, (cC) any principal of the ServicerOriginator, (dD) any Affiliate of the ServicerOriginator, or (eE) any Affiliate of any principal of the ServicerOriginator; provided, however, provided that such Independent Director Manager may be an independent director manager or an independent manager of another special purpose entity affiliated with the Servicer or fail to ensure that all limited liability company action relating to the selection, maintenance or replacement of the Independent Director are duly authorized by the unanimous vote of the board of directors (including the Independent Director)Originator;
(29xxx) fail to provide that the unanimous consent of all directors its managers (including the consent of the Independent DirectorManager) is required for the Seller Borrower to (aA) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (bB) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (cC) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (dD) seek or consent to the appointment of a receiver, liquidator, assignee, trusteeTrustee, sequestrator, custodian or any similar official for the SellerBorrower, (eE) make any assignment for the benefit of the SellerBorrower’s creditors, (fF) admit in writing its inability to pay its debts generally as they become due, or (gG) take any action in furtherance of any of the foregoing; and
(30xxxi) take or refrain from taking, as applicable, each of the activities specified in the non-consolidation opinion of PWinston & ▇▇▇▇▇ B▇▇▇▇ LLP, dated as of the date hereofClosing Date, upon which the conclusions expressed therein are based.
Appears in 1 contract
Sources: Loan and Servicing Agreement (NewStar Financial, Inc.)
Special Purpose Entity. The Seller has not and shall not:
(1i) engage in any business or activity other than the purchase and receipt of Assets Collateral and related assets from the Originator under the Sale Agreementassets, the sale Grant of Assets Collateral under the Transaction Documents, and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (a) the Assets Collateral and related assets from assets, (b) the Originator under the Sale Agreement ownership interests in any REO Affiliate and (bc) incidental property as may be necessary for the operation of the Seller;
(3iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case first obtaining the consent of the Administrative Agent and each Purchaser Agent;
(4iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Agent, amend, modify, terminate or fail to comply with the provisions of Sections 1.05, 1.07, 1.08, 4.02(b) and 10.01 of its operating agreementagreement and any of the defined terms in Section 1.01 of its operating agreement that are contained in any of the above-mentioned sections thereof, or fail to observe limited liability company formalities;
(5v) own any Subsidiary or make any investment in any Person other than an REO Affiliate without the consent of the Administrative Agent and each Purchaser Agent;
(6vi) except as permitted by this Agreement and the Lock-Box Intercreditor Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7vii) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness to the Secured Parties hereunder or in conjunction with a repayment of all Advances or Swingline Advances owed to the Purchasers or the Swingline Purchaser, except for trade payables in the ordinary course of its business; provided, that, provided that such debt is not evidenced by a note and is paid when due;
(8) viii) become insolvent or fail to pay its debts and liabilities from its assets as the same shall become due;
(9ix) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10x) enter into any contract or agreement with any PersonAffiliate, except upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an arms-length basis with unrelated third parties other than such Personparties;
(11xi) seek its dissolution or winding up in whole or in part;
(12xii) fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator or any principal or Affiliate thereof or any other Person;
(13xiii) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(14xiv) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securitiesthe Assets, Cash, Permitted Investments and, with the prior written consent of the Administrative Agent, any loan to an REO Affiliate of the type described in clause (b) of the definition thereof);
(15xv) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulationsregulations (without limiting the foregoing, it is acknowledged and agreed that a single member limited liability company is a disregarded entity for purposes of the Internal Revenue Code);
(16xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity with which such other party is transacting business, or (b) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17xvii) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18xviii) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors;
(19xix) except as may be required by the Internal Revenue Code and regulations, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliates, (b) any Affiliate of a principal or (c) any other Person;
(20xx) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, unless the Seller delivers to the Administrative Agent and each Purchaser Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21xxi) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person (without limiting the foregoing, it is acknowledged that for accounting purposes, the Company may be consolidated with another Person as required by GAAP and included in such Person’s consolidated financial statements);
(22xxii) fail to pay its own liabilities and expenses only out of its own funds;
(23xxiii) fail to pay the salaries of its own employees employees, if any, in light of its contemplated business operations;
(24xxiv) acquire the obligations or securities of its Affiliates or stockholdersstockholders except for obligations or securities of any REO Affiliate and any loan to an REO Affiliate of the type described in clause (b) of the definition thereof with the prior written consent of the Administrative Agent;
(25xxv) guarantee any obligation of any person, including an Affiliate;
(xxvi) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26xxvii) fail to use separate invoices and checks bearing its own name;
(27xxviii) pledge or permit the pledge of its assets for the benefit of any other Person, other than with respect to the payment of the indebtedness to the Secured Parties hereunder;
(28xxix) fail at any time to have at least one (1) independent director manager (an “Independent DirectorManager”) who is not and has not been for at least five (5) years currently a director, officer, employee, trade credit creditor, shareholder, manager or shareholder member (or spouse, parent, sibling or child of the foregoing) of (a) the ServicerOriginator, (b) the Seller, (c) any principal of the ServicerOriginator, (d) any Affiliate of the ServicerOriginator, or (e) any Affiliate of any principal of the ServicerOriginator; provided, however, provided that such Independent Director Manager may be an independent director manager or an independent manager of another special purpose entity affiliated with the Servicer or fail to ensure that all limited liability company action relating to the selection, maintenance or replacement of the Independent Director are duly authorized by the unanimous vote of the board of directors (including the Independent Director)Originator;
(29xxx) fail to provide that the unanimous consent of all directors its managers (including the consent of the Independent DirectorManager) is required for the Seller to (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Seller, (e) make any assignment for the benefit of the Seller’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; and
(30xxxi) take or refrain from taking, as applicable, each of the activities specified in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ Dechert LLP, dated as of the date hereofInitial Closing Date, upon which the conclusions expressed therein are based.
Appears in 1 contract
Sources: Sale and Servicing Agreement (NewStar Financial, Inc.)
Special Purpose Entity. The Seller Borrower has not and shall not:
(1i) engage in any business or activity other than the purchase purchase, receipt and receipt management of Assets Collateral, the transfer and related assets from pledge of Collateral pursuant to the Originator under terms of the Sale AgreementTransaction Documents, the sale of Assets Collateral as permitted hereunder, the entry into and the performance under the Transaction Documents, Documents and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (a) the Assets and related assets from the Originator under the Sale Agreement and Collateral or (b) incidental property as may be necessary for the operation of the SellerBorrower and the performance of its obligations under the Transaction Documents;
(3iii) merge into or consolidate with any Person or dissolve, wind-up, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure(other than in accordance with the provisions hereof), without in each case first obtaining the prior written consent of the Administrative Agent and each Purchaser Agent, or except as permitted by this Agreement, change its legal structure, or jurisdiction of formation;
(4iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Agent, amend, modify, terminate or fail to comply with the provisions of its operating agreementagreement except as otherwise permitted pursuant to Section 5.2(h), or fail to observe limited liability company formalities;
(5v) form, acquire or own any Subsidiary Subsidiary, own any equity interest in any other entity (other than any Equity Security received in exchange for a defaulted Loan or portion thereof in connection with an insolvency, bankruptcy, reorganization, debt restructuring or workout of the Obligor thereof), or make any investment Investment in any Person (other than Permitted Investments) without the prior written consent of the Administrative Agent and each Purchaser Agent;
(6vi) except as permitted by this Agreement and the Lock-Box Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7vii) incur any debtIndebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness Indebtedness to the Secured Parties hereunder or in conjunction with a repayment of all Advances owed to the Purchaser, except for trade payables in Lenders and a termination of all the ordinary course of its business; provided, that, such debt is not evidenced by a note and is paid when dueCommitments;
(8) become insolvent or viii) fail to pay its debts and liabilities from its assets as the same shall become due;
(9ix) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10x) enter into any contract or agreement with any Person, except (a) the Transaction Documents and (b) other contracts or agreements that are upon terms and CIBC – PPIF Loan and Security Agreement conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an arms-length arms‑length basis with third parties other than such Person;
(11xi) seek its dissolution dissolution, termination, liquidation or winding up in whole or in part;
(12xii) fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator or any principal or Affiliate thereof Borrower, the Transferor or any other Person;
(13xiii) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(14) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securities);
(15) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulations;
(16xiv) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity of the Person with which such other party is transacting business, or (b) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17xv) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18xvi) file divide or consent to permit any division of the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditorsBorrower;
(19xvii) except as may be required or permitted by the Internal Revenue Code and regulationsregulations or other applicable state or local tax law, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliatesAffiliates, (b) any Affiliate of a principal or (c) any other Person;
(20) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, unless the Seller delivers to the Administrative Agent and each Purchaser Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21xviii) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate provided that (a) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (b) such assets shall also be listed on the Borrower’s own separate balance sheet;
(22xix) fail to pay its own liabilities and expenses only out of its own funds;
(23xx) fail to maintain a sufficient number of employees, if any, in light of its contemplated business operations or to pay the salaries of its own employees in light of its contemplated business operationsemployees, if any;
(24xxi) acquire the obligations of or securities of issued by its Affiliates or stockholdersmembers, it being understood that this clause (xxi) shall not prevent the Borrower from acquiring Loans from the Transferor; CIBC – PPIF Loan and Security Agreement
(xxii) guarantee any obligation of any person, including an Affiliate;
(25xxiii) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26xxiv) fail to use separate invoices and checks bearing its own name;
(27xxv) pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness to the Secured Parties hereunder;
(28xxvi) (A) fail at any time to have at least one (1) independent director (an the “Independent Director”) which shall be a natural Person approved by the Administrative Agent in its sole discretion, which director must, in each such instance, be a Person who has prior experience as an independent director, independent manager or independent member with at least three (3) years of employment experience and who is provided by ▇▇▇▇▇▇▇ & Associates, CT Corporation, Corporation Service Company, Global Securitization Services, National Registered Agents, Inc., Wilmington Trust Company, ▇▇▇▇▇▇▇ Management Company, Lord Securities Corporation or, if none of those companies is then providing professional Independent Directors, another nationally recognized company reasonably approved by the Lenders, in each case that is not an Affiliate of the Borrower and that provides professional independent directors and other corporate services in the ordinary course of its business, and which individual is duly appointed as an Independent Director and is not, and has never been, and will not been for at least five while serving as Independent Director be, any of the following: (5w) years a member, partner, equityholder, manager, director, officer or employee of the Borrower or any of its equityholders or Affiliates (other than as an Independent Director of the Borrower or any of its equityholders or Affiliates that is required by a creditor to be a single purpose bankruptcy remote entity); (x) a creditor, supplier or service provider (including provider of professional services) to the Borrower or any of its equityholders or Affiliates (other than a nationally recognized company that routinely provides professional Independent Directors and other corporate services to the Borrower or any of its equityholders or Affiliates in the ordinary course of business); (y) a family member of any such member, partner, equityholder, manager, director, officer, employee, trade credit creditor, supplier or shareholder service provider; or (z) a Person that controls (whether directly, indirectly or spouse, parent, sibling or child of the foregoingotherwise) any of (a) the Servicerw), (bx) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, or (ey) any Affiliate of any principal of the Servicerabove; provided, however, such Independent Director may be an independent director of another special purpose entity affiliated with the Servicer or (B) fail to ensure that all limited liability company action relating to the selection, maintenance or replacement of the Independent Director are duly authorized by during the unanimous vote Covenant Compliance Period shall require the written consent of the board Administrative Agent. A natural person who otherwise satisfies the foregoing definition and satisfies clause (w) above by reason of directors (including being the Independent Director)Director of a “special purpose entity” affiliated with the Borrower shall be qualified to serve as an Independent Director of the Borrower;
(29xxvii) fail to provide in its Governing Document that the unanimous consent of all directors (including members and the consent of the Independent Director) is Director are required for the Seller Borrower to (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) CIBC – PPIF Loan and Security Agreement institute or consent to the institution of bankruptcy or insolvency proceedings against itthe Borrower, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, provisional liquidator assignee, trustee, sequestrator, custodian custodian, restructuring officer or any similar official for the SellerBorrower, (e) make any assignment for the benefit of the SellerBorrower’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; andor
(30xxviii) take or refrain fail to file its own tax returns separate from takingthose of any other Person, except to the extent that the Borrower is treated as applicablea “disregarded entity” for tax purposes and is not required to file tax returns under applicable law, each of the activities specified in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ LLP, dated as of the date hereof, upon which the conclusions expressed therein are basedand pay any taxes required to be paid under applicable law.
Appears in 1 contract
Sources: Loan and Security Agreement (PennantPark Private Income Fund)
Special Purpose Entity. The Seller has not and shall not:
(1i) engage in any business or activity other than the purchase and receipt of Assets Collateral and related assets from the Originator under the Sale Agreementassets, the sale Grant of Assets Collateral under the Transaction Documents, and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (a) the Assets Collateral and related assets from assets, (b) the Originator under the Sale Agreement ownership interests in any REO Affiliate and (bc) incidental property as may be necessary for the operation of the Seller;
(3iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case first obtaining the consent of the Administrative Agent and each Purchaser Agent;
(4iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Agent, amend, modify, terminate or fail to comply with the provisions of Sections 1.05, 1.07, 1.08, 4.02(b) and 10.01 of its operating agreementagreement and any of the defined terms in Section 1.01 of its operating agreement that are contained in any of the above-mentioned sections thereof, or fail to observe limited liability company formalities;
(5v) own any Subsidiary or make any investment in any Person other than an REO Affiliate without the consent of the Administrative Agent and each Purchaser Agent;
(6vi) except as permitted by this Agreement and the Lock-Box Intercreditor Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7vii) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness to the Secured Parties hereunder or in conjunction with a repayment of all Advances or Swingline Advances owed to the Purchasers or the Swingline Purchaser, except for trade payables in the ordinary course of its business; provided, that, that such debt is not evidenced by a note and is paid when due;
(8) viii) become insolvent or fail to pay its debts and liabilities from its assets as the same shall become due;
(9ix) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10x) enter into any contract or agreement with any PersonAffiliate, except upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an arms-length basis with unrelated third parties other than such Personparties;
(11xi) seek its dissolution or winding up in whole or in part;
(12xii) fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator or any principal or Affiliate thereof or any other Person;
(13xiii) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(14xiv) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securitiesthe Assets, Cash, Permitted Investments and, with the prior written consent of the Administrative Agent, any loan to an REO Affiliate of the type described in clause (b) of the definition thereof);
(15xv) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulationsregulations (without limiting the foregoing, it is acknowledged and agreed that a single member limited liability company is a disregarded entity for purposes of the Internal Revenue Code);
(16xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity with which such other party is transacting business, or (b) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17xvii) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18xviii) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors;
(19xix) except as may be required by the Internal Revenue Code and regulations, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliates, (b) any Affiliate of a principal or (c) any other Person;
(20xx) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, other than a pledge of the membership interests in the Seller to secure the Fortress Notes, unless the Seller delivers to the Administrative Agent and each Purchaser Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21xxi) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person (without limiting the foregoing, it is acknowledged that for accounting purposes, the Company may be consolidated with another Person as required by GAAP and included in such Person’s consolidated financial statements);
(22xxii) fail to pay its own liabilities and expenses only out of its own funds;
(23xxiii) fail to pay the salaries of its own employees employees, if any, in light of its contemplated business operations;
(24xxiv) acquire the obligations or securities of its Affiliates or stockholdersstockholders except for obligations or securities of any REO Affiliate and any loan to an REO Affiliate of the type described in clause (b) of the definition thereof with the prior written consent of the Administrative Agent;
(25xxv) guarantee any obligation of any person, including an Affiliate;
(xxvi) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26xxvii) fail to use separate invoices and checks bearing its own name;
(27xxviii) pledge or permit the pledge of its assets for the benefit of any other Person, other than with respect to the payment of the indebtedness to the Secured Parties hereunder;
(28xxix) fail at any time to have at least one (1) independent director manager (an “Independent DirectorManager”) who is not and has not been for at least five (5) years currently a director, officer, employee, trade credit creditor, shareholder, manager or shareholder member (or spouse, parent, sibling or child of the foregoing) of (a) the ServicerOriginator, (b) the Seller, (c) any principal of the ServicerOriginator, (d) any Affiliate of the ServicerOriginator, or (e) any Affiliate of any principal of the ServicerOriginator; provided, however, such Independent Director Manager may be an independent director manager or an independent manager of another special purpose entity affiliated with the Servicer or fail to ensure that all limited liability company action relating to the selection, maintenance or replacement of the Independent Director are duly authorized by the unanimous vote of the board of directors (including the Independent Director)Originator;
(29xxx) fail to provide that the unanimous consent of all directors its managers (including the consent of the Independent DirectorManager) is required for the Seller to (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Seller, (e) make any assignment for the benefit of the Seller’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; and
(30xxxi) take or refrain from taking, as applicable, each of the activities specified in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ Dechert LLP, dated as of the date hereofInitial Closing Date, upon which the conclusions expressed therein are based.
Appears in 1 contract
Sources: Sale and Servicing Agreement (NewStar Financial, Inc.)
Special Purpose Entity. The Seller has not and Equityholder shall not:
(1i) engage in any business or activity other than the purchase purchase, receipt and receipt management of Assets the Loans, Permitted Investments and related assets from Investments in the Originator under Borrower, the Sale Agreementtransfer and pledge of Loans and Permitted Investments pursuant to the terms of the Transaction Documents, the sale of Assets Loans and Permitted Investments as permitted hereunder, the entry into and the performance under the Transaction Documents, Documents and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (a) the Assets Loans, Permitted Investments and related assets from Investments in the Originator under the Sale Agreement and Borrower or (b) incidental property as may be necessary for the operation of the SellerEquityholder and the performance of its obligations under the Transaction Documents;
(3iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure(other than pursuant to the Equityholder Sale Agreement), without in each case first obtaining the prior written consent of the Administrative Agent and each Purchaser Agent, or except as permitted by this Agreement, change its legal structure, or jurisdiction of formation;
(4iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Agent, amend, modify, terminate or fail to comply with the provisions of its operating agreementagreement except as otherwise permitted pursuant to Section 5.3(g), or fail to observe limited liability company organizational formalities;
(5v) form, acquire or own any Subsidiary (other than the Borrower), own any equity interest in any other entity (other than any Equity Security received in exchange for a defaulted Loan or portion thereof in connection with an insolvency, bankruptcy, reorganization, debt restructuring or workout of the Obligor thereof), or make any investment Investment in any Person (other than Permitted Investments and Investments in the Borrower) without the prior written consent of the Administrative Agent and each Purchaser Agent;
(6vi) except as permitted by this Agreement and the Lock-Box Agreement, fail to hold all of its assets solely in its own name;
(vii) commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7viii) incur any debtIndebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness Indebtedness to the Secured Parties hereunder hereunder, or to the Borrower pursuant to the Equityholder Sale Agreement, or in conjunction with a repayment of all Loan Advances owed to the Purchaser, except for trade payables in Lenders and a termination of all the ordinary course of its business; provided, that, such debt is not evidenced by a note and is paid when dueCommitments;
(8) become insolvent or ix) fail to pay its debts and liabilities solely from its own assets as the same shall become due;
(9x) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10xi) enter into any contract or agreement with any Person, including the Transaction Documents, Underlying Instruments, purchase, sale or transfer agreements related to Collateral, and agreements incidental thereto, except in the ordinary course of business and upon terms and conditions that are commercially reasonable and reasonable, intrinsically fair and substantially similar to those that would be available on an arms-length basis with unrelated third parties other than such Personparties;
(11xii) seek its termination, winding up, liquidation and/or dissolution or winding up in whole or in partpart unless required by Applicable Laws;
(12xiii) fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator or any principal or Affiliate thereof Borrower, the Equityholder, the Transferor or any other Person;
(13xiv) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(14) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securitiespursuant to the Pledge Agreement (Borrower Equity);
(15) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulations;
(16xv) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity of the Person with which such other party is transacting business, or (b) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17xvi) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; provided that the foregoing shall not require any holder of Capital Stock of the Equityholder to make any additional capital contributions;
(18xvii) file divide or consent to permit any division of the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditorsEquityholder;
(19xviii) except as may be required by the Internal Revenue Code and regulations, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliatesAffiliates, (b) any Affiliate of a principal or (c) any other Person;
(20) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, unless the Seller delivers to the Administrative Agent and each Purchaser Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21xix) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however, that the Equityholder’s assets may be included in a consolidated financial statement of its Affiliate; provided that, so long as permitted by Applicable Laws, (a) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Equityholder from such Affiliate and to indicate that the Equityholder’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (b) such assets shall also be listed on the Equityholder’s own separate balance sheet;
(22xx) [reserved];
(xxi) fail to pay its own liabilities and expenses only out maintain a sufficient number of employees, if any, in light of its own funds;
(23) fail contemplated business operations or to pay the salaries of its own employees in light of its contemplated business operationsemployees, if any;
(24xxii) acquire the obligations of or securities of issued by its Affiliates Affiliates, it being understood that this clause (xxii) shall not prevent the Equityholder from acquiring Loans from the Transferor or stockholdersits Affiliates;
(25xxiii) guarantee any obligation of any person, including an Affiliate;
(xxiv) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including including, without limitation, paying for office space and services performed by any employee of an Affiliate;
(26xxv) fail to use separate stationery, invoices and checks bearing its own name;
(27xxvi) maintain its assets in such a manner that will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(xxvii) pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness to the Secured Parties hereunder;
(28A) except while a vacancy is being filled as provided in clause (C), fail at any time to have at least one (1) duly appointed independent manager (the “Independent Manager”) which (a) shall be a natural Person approved by the Administrative Agent in its sole discretion, (b) shall be a Person who has prior experience as an independent director, independent manager or independent member with at least three (3) years of employment experience, (c) is provided by CT Corporation, Corporation Service Company, Global Securitization Services, National Registered Agents, Inc., Wilmington Trust Company, ▇▇▇▇▇▇▇ Management Company, Lord Securities Corporation, ICG Services Limited, Circumference FS, HighWater, One Group Solutions or another nationally recognized company reasonably approved by the Administrative Agent that is not an Affiliate of the Equityholder and that provides professional independent managers or independent directors and other corporate services in the ordinary course of its business, and (d) is not, and has never been, and will not while serving as Independent Manager be, any of the following: (w) a member, partner, equityholder, manager, director, officer or employee of the Equityholder or any of its equityholders or Affiliates (other than his or her service as an independent manager or independent director (including a manager or a director of an “Independent Director”independent general partner or similar managing entity) who is not of the Equityholder or any of its equityholders or Affiliates); (x) a creditor, supplier or service provider (including provider of professional services) to the Equityholder or any of its equityholders or Affiliates (other than a nationally recognized company that routinely provides professional independent managers or independent directors and has not been for at least five other corporate services to the Equityholder or any of its equityholders or Affiliates in the ordinary course of business); (5y) years a family member of any such member, partner, equityholder, manager, director, officer, employee, trade credit creditor, supplier or shareholder service provider; or (z) a Person that controls (whether directly, indirectly or spouse, parent, sibling or child of the foregoingotherwise) any of (a) the Servicerw), (bx) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, or (ey) any Affiliate of any principal of the Servicerabove; provided, however, such Independent Director may be an independent director of another special purpose entity affiliated with the Servicer or (B) fail to ensure that all limited liability company any action relating to the selection, maintenance selection or replacement of the Independent Director are duly authorized by Manager during the unanimous vote Covenant Compliance Period shall require the written consent of the board Administrative Agent or (C) if an Independent Manager resigns, is removed or becomes deceased, fail to ensure that a successor Independent Manager is appointed as soon as possible. For the avoidance of directors doubt, a natural person who satisfies clause (including w) above by reason of being a person qualifying under the description in the parenthetical thereof and otherwise satisfies the conditions set forth in the foregoing clauses (a) through (d) shall be qualified to serve as an Independent Director)Manager of the Equityholder;
(29xxix) fail to provide that the unanimous consent of all directors (including members and the consent of the Equityholder’s Independent Director) Manager is required for the Seller Equityholder to (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the SellerEquityholder, (e) make any assignment for the benefit of the SellerEquityholder’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; andor
(30xxx) take or refrain fail to file its own tax returns separate from takingthose of any other Person, except to the extent that the Equityholder is treated as applicablea “disregarded entity” for tax purposes and is not required to file tax returns under applicable law, each of the activities specified and pay any material taxes required to be paid under applicable law except taxes that are being contested in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ LLP, dated as of the date hereof, upon good faith by appropriate proceedings and for which the conclusions expressed therein are basedit has set aside on its books adequate reserves in accordance with GAAP.
Appears in 1 contract
Sources: Loan, Security and Collateral Management Agreement (Phillip Street Middle Market Lending Fund LLC)
Special Purpose Entity. The Seller Borrower has not and shall not:
(1i) engage in any business or activity other than the purchase and receipt of Assets Collateral and related assets from the Originator under the Sale Agreementassets, the sale Grant of Assets Collateral under the Transaction Documents, and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (a) the Assets Collateral and related assets from the Originator under the Sale Agreement assets, and (b) incidental property as may be necessary for the operation of the SellerBorrower;
(3iii) except as otherwise expressly permitted in this Agreement, merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case first obtaining the consent of the Administrative Agent and each Purchaser AgentLender;
(4iv) except as otherwise expressly permitted in this Agreement, fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser AgentLender, amend, modify, terminate or fail to comply with the provisions of Sections 1.05, 1.07, 1.08, 4.02(b) and 10.01 of its operating agreementagreement and any of the defined terms in Section 1.01 of its operating agreement that are contained in any of the above-mentioned sections thereof, or fail to observe limited liability company formalities;
(5v) own any Subsidiary or make any investment in any Person without the consent of the Administrative Agent and each Purchaser AgentLender;
(6vi) except as permitted by this Agreement and the Lock-Box Intercreditor Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7vii) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) indebtedness to the Secured Parties hereunder hereunder, (B) under the Borrower ISDA Guaranty or (C) in conjunction with a repayment of all Advances owed to the PurchaserLenders, except for trade payables in the ordinary course of its business; provided, that, provided that such debt is not evidenced by a note and is paid when due;
(8) viii) become insolvent or fail to pay its debts and liabilities from its assets as the same shall become due;
(9ix) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10x) enter into any contract or agreement with any PersonAffiliate, except upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an armsarm’s-length basis with unrelated third parties other than such Personparties;
(11xi) seek its dissolution or winding up in whole or in part;
(12xii) fail to correct any known misunderstandings regarding the separate identity of Seller Borrower and the Originator or any principal or Affiliate thereof or any other Person;
(13xiii) guarantee, become obligated for, or hold itself out to be responsible for the debt of another PersonPerson other than under the Borrower ISDA Guaranty;
(14xiv) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash the Loans, Cash, Permitted Investments and investment-grade securitiesany Hedge Transaction);
(15xv) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulationsregulations (without limiting the foregoing, it is acknowledged and agreed that a single member limited liability company is a disregarded entity for purposes of the Code);
(16xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity with which such other party is transacting business, or (b) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17xvii) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18xviii) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors;
(19xix) except as may be required by the Internal Revenue Code and regulations, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliatesAffiliates, (b) any Affiliate of a principal or (c) any other Person;
(20xx) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller Borrower to the extent it has the ability to control the same, other than a pledge of the membership interests in the Borrower to secure the Fortress Notes pursuant to a pledge agreement approved by the Administrative Agent prior to the Closing Date, unless the Seller Borrower delivers to the Administrative Agent and each Purchaser Agent Lender an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21xxi) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person (without limiting the foregoing, it is acknowledged that for accounting purposes, the Borrower may be consolidated with another Person as required by GAAP and included in such Person’s consolidated financial statements);
(22xxii) fail to pay its own liabilities and expenses only out of its own funds;
(23xxiii) fail to pay the salaries of its own employees employees, if any, in light of its contemplated business operations;
(24xxiv) acquire the obligations of or securities of issued by its Affiliates or stockholdersmembers;
(25xxv) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26xxvi) fail to use separate invoices and checks bearing its own name;
(27xxvii) pledge or permit the pledge of its assets for the benefit of any other Person, other than with respect to the payment of the indebtedness to the Secured Parties hereunder;
(28xxviii) (A) fail at any time to have at least one (1) independent director (an “Independent Director”) who Manager except while a vacancy is not and has not been for at least five (5) years a director, officer, employee, trade credit or shareholder (or spouse, parent, sibling or child of being filled pursuant to the foregoing) of (a) the Servicer, (b) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, Borrower’s organizational documents or (eB) any Affiliate of any principal of the Servicer; provided, however, such Independent Director may be an independent director of another special purpose entity affiliated with the Servicer or fail to ensure that all limited liability company action actions relating to the selection, maintenance selection or replacement of the Independent Director Manager are duly authorized by and in accordance with the unanimous vote of the board of directors (including the Independent Director)Borrower’s organizational documents;
(29xxix) fail to provide that the unanimous consent of all directors its managers (including the consent of the Independent DirectorManager) is required for the Seller Borrower to (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the SellerBorrower, (e) make any assignment for the benefit of the SellerBorrower’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; and
(30xxx) take or refrain from taking, as applicable, each of the activities specified in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ Dechert LLP, dated as of the date hereofClosing Date, upon which the conclusions expressed therein are based.
Appears in 1 contract
Sources: Loan and Servicing Agreement (NewStar Financial, Inc.)
Special Purpose Entity. The Seller has not and shall not:
(1i) engage in any business or activity other than the purchase and receipt of Assets Collateral and related assets from the Originator under the Sale Agreement, the sale of Assets Collateral under the Transaction Documents, and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (a) the Assets Collateral and related assets from the Originator under the Sale Agreement and (b) incidental property as may be necessary for the operation of the Seller;
(3iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case first obtaining the consent of the Administrative Agent and each Purchaser Agent;
(4iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Agent, amend, modify, terminate or fail to comply with the provisions of its operating agreement, or fail to observe limited liability company formalities;
(5v) own any Subsidiary or make any investment in any Person without the consent of the Administrative Agent and each Purchaser Agentexcept with respect to the “Issuer” (as defined in the Indenture);
(6vi) except as permitted by this Agreement and the Lock-Box Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7vii) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness to the Secured Parties hereunder or in conjunction with a repayment of all Advances owed to the PurchaserPurchasers, except for trade payables in the ordinary course of its business; provided, that, provided that such debt is not evidenced by a note and is paid when due;
(8) viii) become insolvent or fail to pay its debts and liabilities from its assets as the same shall become due;
(9ix) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10x) enter into any contract or agreement with any Person, except upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than such Person;
(11xi) seek its dissolution or winding up in whole or in part;
(12xii) fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator or any principal or Affiliate thereof or any other Person;
(13xiii) guarantee, become obligated for, or hold itself out to be responsible for the debt indebtedness of another Person;
(14xiv) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securities);
(15xv) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulations;
(16xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity with which such other party is transacting business, or (b) to suggest that it is responsible for the debts indebtedness of any third party (including any of its principals or Affiliates);
(17xvii) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18xviii) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors;
(19xix) except as may be required by the Internal Revenue Code and regulations, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliates, (b) any Affiliate of a principal or (c) any other Person;
(20xx) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, unless the Seller delivers to the Administrative Agent and each Purchaser Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21xxi) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person;
(22xxii) fail to pay its own liabilities and expenses only out of its own funds;
(23xxiii) fail to pay the salaries of its own employees in light of its contemplated business operations;
(24xxiv) acquire the obligations or securities of its Affiliates or stockholders;
(25xxv) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26xxvi) fail to use separate invoices and checks bearing its own name;
(27xxvii) pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness to the Secured Parties hereunder;
(28xxviii) fail at any time to have at least one (1) independent director (an “Independent Director”) who is not and has not been for at least five (5) years a director, officer, employee, trade credit or shareholder (or spouse, parent, sibling or child of the foregoing) of (a) the Servicer, (b) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, or (e) any Affiliate of any principal of the ServicerServicer (an “Independent Director”); provided, however, provided that such Independent Director may be an independent director of another special purpose entity affiliated with the Servicer or its Affiliates or fail to ensure that all limited liability company action relating to the selection, maintenance or replacement of the Independent Director are duly authorized by the unanimous vote of the board of directors (including the Independent Director);
(29xxix) to provide that take any of the following actions without obtaining the prior unanimous consent of all directors (including the consent of the Independent Director) is required for the Seller to ): (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Seller, (e) make any assignment for the benefit of the Seller’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; and
(30xxx) take or refrain from taking, as applicable, each of the activities specified in the non-consolidation opinion of P▇▇▇▇▇▇ B▇▇▇▇▇ LLP, dated as of the date hereof, upon which the conclusions expressed therein are basedClosing Date.
Appears in 1 contract
Special Purpose Entity. The Seller has not and Equityholder shall not:
(1i) engage in any business or activity other than the purchase purchase, receipt and receipt management of Assets the Loans, Permitted Investments and related assets from Investments in the Originator under Borrower, the Sale Agreementtransfer and pledge of Loans and Permitted Investments pursuant to the terms of the Transaction Documents, the sale of Assets Loans and Permitted Investments as permitted hereunder, the entry into and the performance under the Transaction Documents, Documents and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (a) the Assets Loans, Permitted Investments and related assets from Investments in the Originator under the Sale Agreement and Borrower or (b) incidental property as may be necessary for the operation of the SellerEquityholder and the performance of its obligations under the Transaction Documents;
(3iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure(other than pursuant to the Equityholder Sale Agreement), without in each case first obtaining the prior written consent of the Administrative Agent and each Purchaser Agent, or except as permitted by this Agreement, change its legal structure, or jurisdiction of formation;
(4iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Agent, amend, modify, terminate or fail to comply with the provisions of its operating agreementagreement except as otherwise permitted pursuant to Section 5.3(g), or fail to observe limited liability company organizational formalities;
(5v) form, acquire or own any Subsidiary (other than the Borrower), own any equity interest in any other entity (other than any Equity Security received in exchange for a defaulted Loan or portion thereof in connection with an insolvency, bankruptcy, reorganization, debt restructuring or workout of the Obligor thereof), or make any investment Investment in any Person (other than Permitted Investments and Investments in the Borrower) without the prior written consent of the Administrative Agent and each Purchaser Agent;
(6vi) except as permitted by this Agreement and the Lock-Box Agreement, fail to hold all of its assets solely in its own name;
(vii) commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7viii) incur any debtIndebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than indebtedness Indebtedness to the Secured Parties hereunder hereunder, or to the Borrower pursuant to the Equityholder Sale Agreement, or in conjunction with a repayment of all Loan Advances owed to the Purchaser, except for trade payables in Lenders and a termination of all the ordinary course of its business; provided, that, such debt is not evidenced by a note and is paid when dueCommitments;
(8) become insolvent or ix) fail to pay its debts and liabilities solely from its own assets as the same shall become due;
(9x) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10xi) enter into any contract or agreement with any Person, including the Transaction Documents, Underlying Instruments, purchase, sale or transfer agreements related to Collateral, and agreements incidental thereto, except in the ordinary course of business and upon terms and conditions that are commercially reasonable and reasonable, intrinsically fair and substantially similar to those that would be available on an arms-length basis with unrelated third parties other than such Personparties;
(11xii) seek its termination, winding up, liquidation and/or dissolution or winding up in whole or in partpart unless required by Applicable Laws;
(12xiii) fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator or any principal or Affiliate thereof Borrower, the Equityholder, the Transferor or any other Person;
(13xiv) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(14) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securitiespursuant to the Pledge Agreement (Borrower Equity);
(15) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulations;
(16xv) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity of the Person with which such other party is transacting business, or (b) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17xvi) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; provided that the foregoing shall not require any holder of Capital Stock of the Equityholder to make any additional capital contributions;
(18xvii) file divide or consent to permit any division of the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditorsEquityholder;
(19xviii) except as may be required by the Internal Revenue Code and regulations, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliatesAffiliates, (b) any Affiliate of a principal or (c) any other Person;
(20) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, unless the Seller delivers to the Administrative Agent and each Purchaser Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21xix) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however, that the Equityholder’s assets may be included in a consolidated financial statement of its Affiliate; provided that, so long as permitted by Applicable Laws, (a) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Equityholder from such Affiliate and to indicate that the Equityholder’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (b) such assets shall also be listed on the Equityholder’s own separate balance sheet;
(22xx) [reserved];
(xxi) fail to pay its own liabilities and expenses only out maintain a sufficient number of employees, if any, in light of its own funds;
(23) fail contemplated business operations or to pay the salaries of its own employees in light of its contemplated business operationsemployees, if any;
(24xxii) acquire the obligations of or securities of issued by its Affiliates Affiliates, it being understood that this clause (xxii) shall not prevent the Equityholder from acquiring Loans from the Transferor or stockholdersits Affiliates;
(25xxiii) guarantee any obligation of any person, including an Affiliate;
(xxiv) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including including, without limitation, paying for office space and services performed by any employee of an Affiliate;
(26xxv) fail to use separate stationery, invoices and checks bearing its own name;
(27xxvi) maintain its assets in such a manner that will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(xxvii) pledge its assets for the benefit of any other Person, other than with respect to payment of the indebtedness to the Secured Parties hereunder;
(28A) except while a vacancy is being filled as provided in clause (C), fail at any time to have at least one (1) duly appointed independent manager (the “Independent Manager”) which (a) shall be a natural Person approved by the Administrative Agent in its sole discretion, (b) shall be a Person who has prior experience as an independent director, independent manager or independent member with at least three (3) years of employment experience, (c) is provided by CT Corporation, Corporation Service Company, Global Securitization Services, National Registered Agents, Inc., Wilmington Trust Company, ▇▇▇▇▇▇▇ Management Company, Lord Securities Corporation, ICG Services Limited, Circumference FS, HighWater, One Group Solutions or another nationally recognized company reasonably approved by the Administrative Agent that is not an Affiliate of the Equityholder and that provides professional independent managers or independent directors and other corporate services in the ordinary course of its business, and (d) is not, and has never been, and will not while serving as Independent Manager be, any of the following: (w) a member, partner, equityholder, manager, director, officer or employee of the Equityholder or any of its equityholders or Affiliates (other than his or her service as an independent manager or independent director (including a manager or a director of an “Independent Director”independent general partner or similar managing entity) who is not of the Equityholder or any of its equityholders or Affiliates); (x) a creditor, supplier or service provider (including provider of professional services) to the Equityholder or any of its equityholders or Affiliates (other than a nationally recognized company that routinely provides professional independent managers or independent directors and has not been for at least five other corporate services to the Equityholder or any of its equityholders or Affiliates in the ordinary course of business); (5y) years a family member of any such member, partner, equityholder, manager, director, officer, employee, trade credit creditor, supplier or shareholder service provider; or (z) a Person that controls (whether directly, indirectly or spouse, parent, sibling or child of the foregoingotherwise) any of (a) the Servicerw), (bx) the Seller, (c) any principal of the Servicer, (d) any Affiliate of the Servicer, or (ey) any Affiliate of any principal of the Servicerabove; provided, however, such Independent Director may be an independent director of another special purpose entity affiliated with the Servicer or (B) fail to ensure that all limited liability company any action relating to the selection, maintenance selection or replacement of the Independent Director are duly authorized by Manager during the unanimous vote Covenant Compliance Period shall require the written consent of the board Administrative Agent or (C) if an Independent Manager resigns, is removed or becomes deceased, fail to ensure that a successor Independent Manager is appointed as soon as possible. For the avoidance of directors doubt, a natural person who satisfies clause (including w) above by reason of being a person qualifying under the description in the parenthetical thereof and otherwise satisfies the conditions set forth in the foregoing clauses (a) through (d) shall be qualified to serve as an Independent Director)Manager of the Equityholder;
(29xxix) fail to provide that the unanimous consent of all directors (including members and the consent of the Equityholder’s Independent Director) Manager is required for the Seller Equityholder to (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the SellerEquityholder, (e) make any assignment for the benefit of the SellerEquityholder’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; andor
(30xxx) take or refrain fail to file its own tax returns separate from takingthose of any other Person, except to the extent that the Equityholder is treated as applicablea “disregarded entity” for tax purposes and is not required to file tax returns under applicable law, each of and pay any material taxes required to be paid under applicable law except taxes that are being contested in good faith by appropriate proceedings and for which it has set aside on its books adequate reserves in accordance with the activities specified in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ LLP, dated as of the date hereof, upon which the conclusions expressed therein are basedApplicable Accounting Standard.
Appears in 1 contract
Sources: Loan, Security and Collateral Management Agreement (Phillip Street Middle Market Lending Fund LLC)
Special Purpose Entity. The Seller has not and shall not:
(1i) engage in any business or activity other than the purchase and receipt of Assets Collateral and related assets from the Originator under the Sale Agreementassets, the sale Grant of Assets Collateral under the Transaction Documents, and such other activities as are incidental thereto;
(2ii) acquire or own any material assets other than (a) the Assets Collateral and related assets from assets, (b) the Originator under the Sale Agreement ownership interests in any REO Affiliate and (bc) incidental property as may be necessary for the operation of the Seller;
(3iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case first obtaining the consent of the Administrative Agent and each Purchaser Agent;
(4iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or without the prior written consent of the Administrative Agent and each Purchaser Agent, amend, modify, terminate or fail to comply with the provisions of Sections 1.05, 1.07, 1.08, 4.02(b) and 10.01 of its operating agreementagreement and any of the defined terms in Section 1.01 of its operating agreement that are contained in any of the above-mentioned sections thereof, or fail to observe limited liability company formalities;
(5v) own any Subsidiary or make any investment in any Person other than an REO Affiliate without the consent of the Administrative Agent and each Purchaser Agent;
(6vi) except as permitted by this Agreement and the Lock-Box Intercreditor Agreement, commingle its assets with the assets of any of its Affiliates, or of any other Person;
(7vii) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) indebtedness to the Secured Parties hereunder hereunder, (B) under the Seller ISDA Guaranty or (C) in conjunction with a repayment of all Advances owed to the PurchaserPurchasers, except for trade payables in the ordinary course of its business; provided, that, provided that such debt is not evidenced by a note and is paid when due;
(8) viii) become insolvent or fail to pay its debts and liabilities from its assets as the same shall become due;
(9ix) fail to maintain its records, books of account and bank accounts separate and apart from those of any other Person;
(10x) enter into any contract or agreement with any PersonAffiliate, except upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an arms-length basis with unrelated third parties other than such Personparties;
(11xi) seek its dissolution or winding up in whole or in part;
(12xii) fail to correct any known misunderstandings regarding the separate identity of Seller and the Originator or any principal or Affiliate thereof or any other Person;
(13xiii) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(14xiv) make any loan or advances to any third party, including any principal or Affiliate, or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securitiesthe Assets, Cash, Permitted Investments and, with the prior written consent of the Administrative Agent, any loan to an REO Affiliate of the type described in clause (b) of the definition thereof);
(15xv) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Internal Revenue Code and regulationsregulations (without limiting the foregoing, it is acknowledged and agreed that a single member limited liability company is a disregarded entity for purposes of the Internal Revenue Code);
(16xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (a) to mislead others as to the identity with which such other party is transacting business, or (b) to suggest that it is responsible for the debts of any third party (including any of its principals or Affiliates);
(17xvii) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(18xviii) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors;
(19xix) except as may be required by the Internal Revenue Code and regulations, share any common logo with or hold itself out as or be considered as a department or division of (a) any of its principals or affiliates, (b) any Affiliate of a principal or (c) any other Person;
(20xx) permit any transfer (whether in any one or more transactions) of any direct or indirect ownership interest in the Seller to the extent it has the ability to control the same, unless the Seller delivers to the Administrative Agent and each Purchaser Agent an acceptable non-consolidation opinion and the Administrative Agent consents to such transfer;
(21xxi) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person (without limiting the foregoing, it is acknowledged that for accounting purposes, the Company may be consolidated with another Person as required by GAAP and included in such Person’s consolidated financial statements);
(22xxii) fail to pay its own liabilities and expenses only out of its own funds;
(23xxiii) fail to pay the salaries of its own employees employees, if any, in light of its contemplated business operations;
(24xxiv) acquire the obligations or securities of its Affiliates or stockholdersstockholders except for obligations or securities of any REO Affiliate and any loan to an REO Affiliate of the type described in clause (b) of the definition thereof with the prior written consent of the Administrative Agent;
(25xxv) guarantee any obligation of any person, including an Affiliate;
(xxvi) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(26xxvii) fail to use separate invoices and checks bearing its own name;
(27xxviii) pledge or permit the pledge of its assets for the benefit of any other Person, other than with respect to the payment of the indebtedness to the Secured Parties hereunder;
(28xxix) fail at any time to have at least one (1) independent director manager (an “Independent DirectorManager”) who is not and has not been for at least five (5) years currently a director, officer, employee, trade credit creditor, shareholder, manager or shareholder member (or spouse, parent, sibling or child of the foregoing) of (a) the ServicerOriginator, (b) the Seller, (c) any principal of the ServicerOriginator, (d) any Affiliate of the ServicerOriginator, or (e) any Affiliate of any principal of the ServicerOriginator; provided, however, provided that such Independent Director Manager may be an independent director manager or an independent manager of another special purpose entity affiliated with the Servicer or fail to ensure that all limited liability company action relating to the selection, maintenance or replacement of the Independent Director are duly authorized by the unanimous vote of the board of directors (including the Independent Director)Originator;
(29xxx) fail to provide that the unanimous consent of all directors its managers (including the consent of the Independent DirectorManager) is required for the Seller to (a) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (c) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (d) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Seller, (e) make any assignment for the benefit of the Seller’s creditors, (f) admit in writing its inability to pay its debts generally as they become due, or (g) take any action in furtherance of any of the foregoing; and
(30xxxi) take or refrain from taking, as applicable, each of the activities specified in the non-consolidation opinion of P▇▇▇▇▇ B▇▇▇▇ Dechert LLP, dated as of the date hereofInitial Closing Date, upon which the conclusions expressed therein are based.
Appears in 1 contract
Sources: Sale and Servicing Agreement (NewStar Financial, Inc.)