Common use of Certain Undertakings Relating to Separateness Clause in Contracts

Certain Undertakings Relating to Separateness. Without limiting any, and subject to all, other covenants of the Borrower the Servicer and the Equityholder contained in this Agreement: (a) The Borrower shall maintain its bank accounts, books, accounting and other records separate from those of any other Person, except that the accounts of the Borrower may be included in the consolidated financial statements of the Equityholder as required by GAAP or Applicable Law and for U.S. tax purposes to the extent the Borrower is treated as a disregarded entity for U.S. tax purposes. (b) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other Person, and shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents or for tax purposes. (c) The Borrower shall pay its own debts, liabilities and expenses only out of its own assets as the same shall become due; provided that the Borrower may share overhead expenses with another Person so long as such expenses are allocated fairly and reasonably between the Borrower and such other Person. (d) The Borrower has observed, and shall observe, in all material respects all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence. (e) The Borrower shall have at least one (1) Independent Manager at all times. (f) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person, except, in each case, as permitted by or pursuant to the Facility Documents. (g) The Borrower shall, at all times, hold itself out to the public as a legal and economic entity separate from any other Person, shall not identify itself as a division of any other Person and shall correct any known misunderstanding regarding its separate identity; provided that the assets, liabilities and operating results of the Borrower may be consolidated for accounting purposes and included in consolidated financial statements of the Equityholder as required by GAAP or Applicable Law. (h) The Borrower shall not seek its dissolution or winding up in whole or in part or divide or permit any division of the Borrower. (i) Any transaction between the Borrower and its Affiliates shall be on arm’s-length terms except, for the avoidance of doubt, the execution, delivery and performance of the Facility Documents by the Borrower and its Affiliates and if such transaction involves the Borrower’s acquisition of additional Portfolio Investments, such transaction must be on terms and conditions that effect a true sale or contribution of such Portfolio Investments. (j) Except as provided in the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (k) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the Equityholder, its Affiliates or any other Person. (l) The Borrower shall not make loans or advances to any Person, except for the Portfolio Investments and as permitted by or pursuant to the Facility Documents. (m) The Borrower shall make no transfer of its Portfolio Investments, except as permitted by or pursuant to the Facility Documents. (n) The Borrower shall file its own U.S. federal and state income Tax returns, if any, and other material tax returns, if any, as may be required under Applicable Law and pay any U.S. federal and state income Taxes and other material Taxes so required that are due to be paid by it under Applicable Law (other than Taxes which are being contested in good faith and by proper proceedings and against which adequate reserves are being maintained in accordance with GAAP). (o) The Borrower shall, to the extent used in its business, use separate stationery, invoices and checks. (p) The Borrower shall maintain adequate capital in light of its contemplated business operations; provided, however, that the foregoing shall not require the Equityholder to make capital contributions to the Borrower. (q) The Borrower shall at all times be organized as a special purpose entity and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its Constituent Documents in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (r) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “true sale” and “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct, but solely to the extent that said opinion letters expressly require such assumptions to remain true and correct at all times in order for such letters’ underlying opinions to be valid.

Certain Undertakings Relating to Separateness. (a) Without limiting any, and subject to all, other covenants of the Borrower the Servicer and the Equityholder contained in this Agreement, the Borrower shall conduct its business and operations separate and apart from that of any other Person (including the Collateral Manager, Capitala and their respective Affiliates) and in furtherance of the foregoing: (a1) The Borrower shall maintain its bank accounts, financial statements, books, accounting and other records records, and other Borrower documents separate from those of any other Person, except provided that the accounts of the Borrower may be included in the consolidated financial statements of the Equityholder as required by GAAP or Applicable Law with Capitala solely for tax and for U.S. tax purposes to the extent the Borrower is treated as a disregarded entity for U.S. tax accounting purposes. (b2) The Borrower shall not commingle or pool any of its funds or assets with those of any Affiliate or any other PersonPerson (other than as expressly contemplated herein with respect to the Excluded Amounts), and it shall hold all of its assets in its own name, except as otherwise permitted or required under the Facility Documents Documents. (3) The Borrower shall conduct its own business in its own name and, for all purposes, shall not operate, or purport to operate, collectively as a single or consolidated business entity with respect to any Person; provided that this clause (3) shall not bind the Borrower’s position for U.S. federal income tax purposes. (c4) The Borrower shall pay its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; provided that the Borrower may share overhead expenses with another Person so long as such expenses are allocated fairly and reasonably between the Borrower and such other Person. (d5) The Borrower has observed, and shall observe, in all material respects observe all (A) limited liability company formalities and (B) other organizational formalities, in each case to the extent necessary or advisable to preserve its separate existence, and shall preserve its existence, and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its limited liability company agreement in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (e) The Borrower shall have at least one (1) Independent Manager at all times. (f6) The Borrower shall not (A) guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Person or (B) control the decisions or actions respecting the daily business or affairs of any other Person, except, in each case, Person except as permitted by or pursuant to the Facility Documents. (g7) The Borrower shall, at all times, hold itself out to the public as a legal and economic entity separate and distinct from any other Person, Person provided that the assets of the Borrower may be consolidated into Capitala for tax and accounting purposes and included in consolidated financial statements of Capitala. (8) The Borrower shall not identify itself as a division of any other Person and shall correct any known misunderstanding regarding its separate identityPerson; provided that this clause (8) shall not bind the assetsBorrower’s position for U.S. federal income tax purposes. (9) The Borrower shall maintain its assets in such a manner that it will not be costly or difficult to segregate, liabilities and operating results ascertain or identify its individual assets from those of the any Affiliate or any other Person. (10) The Borrower may be consolidated for accounting purposes and included shall not use its separate existence to perpetrate a fraud in consolidated financial statements violation of the Equityholder as required by GAAP or Applicable Law. (h11) The Borrower shall not seek not, in connection with the Facility Documents, act with an intent to hinder, delay or defraud any of its dissolution or winding up creditors in whole or in part or divide or permit any division violation of the BorrowerApplicable Law. (i12) Any transaction between Except as permitted by or pursuant to the Facility Documents, the Borrower and its Affiliates shall be on arm’s-maintain an arm’s length terms except, for the avoidance of doubt, the execution, delivery and performance of the Facility Documents by the Borrower and relationship with its Affiliates and if such transaction involves the Borrower’s acquisition of additional Portfolio Investments, such transaction must be on terms and conditions that effect a true sale or contribution of such Portfolio InvestmentsCapitala. (j13) Except as provided in permitted by or pursuant to the Facility Documents, the Borrower shall not grant a security interest or otherwise pledge its assets for the benefit of any other Person. (k14) Except as provided in the Facility Documents, the Borrower shall not acquire any securities or debt instruments of the EquityholderCapitala, its Affiliates or any other Person. (l15) The Borrower shall not make loans or advances to any Person, except for the Portfolio Investments Collateral Loans and as permitted by or pursuant to the Facility Documents. (m16) The Borrower shall make no transfer of its Portfolio Investments, assets except as permitted by or pursuant to the Facility Documents. (n17) The Borrower shall file its own U.S. federal and state income Tax returnstax returns separate from those of any other Person or entity, if any, and except to the extent that the Borrower is not required to file tax returns under applicable law or is not permitted to file its own tax returns separate from those of any other material tax returns, if any, as may be required under Applicable Law and pay any U.S. federal and state income Taxes and other material Taxes so required that are due to be paid by it under Applicable Law (other than Taxes which are being contested in good faith and by proper proceedings and against which adequate reserves are being maintained in accordance with GAAP)Person. (o18) The Borrower shall, to the extent used in shall not acquire obligations or securities of its business, members. (19) The Borrower shall use separate stationery, invoices and checks. (p20) The Borrower shall correct any known misunderstanding regarding its separate identity; provided that this clause (20) shall not bind the Borrower’s position for U.S. federal income tax purposes. (21) The Borrower shall maintain adequate capital in light of its contemplated business operations; provided, however, that the foregoing shall not require the Equityholder to make capital contributions to the Borrower. (q22) The Borrower shall at all times be organized as a special purpose entity and it shall not, nor shall it permit any Affiliate or any other Person to, amend, modify or otherwise change its Constituent Documents in a manner that would adversely affect the existence of the Borrower as a bankruptcy-remote special purpose entity. (r23) The Borrower shall at all times conduct its business so that any assumptions made with respect to the Borrower in any “true sale” and “substantive non-consolidation” opinion letter delivered in connection with the Facility Documents will continue to be true and correct, but solely to the extent that said opinion letters expressly require such assumptions to remain true and correct at in all times in order for such letters’ underlying opinions to be validmaterial respects.