Sale, Transfer and Assignment. (a) On the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase set forth in Article III), on each Purchase Date, the applicable Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases and takes from such Seller, all right, title and interest of such Seller in the property identified in clauses (i) through (iii) below, whether constituting accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, software, supporting obligations, accessions or other property of such Seller, including the following (in each case excluding any Excluded Amounts and Retained Interest) (collectively, the “Sale Assets”): (i) the Receivables identified by such Seller as of any Purchase Date which are listed on Schedule I to the applicable Sale Assignment, together with all monies due or to become due in payment under such Receivables on and after the applicable Purchase Date, including, but not limited to, all Collections; (ii) all Related Security with respect to the Receivables referred to in clause (i) above; and (iii) all income and Proceeds of the foregoing. (b) Either the Sellers, on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice to the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Date. (c) The applicable Seller shall, on or prior to each Purchase Date, execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) in the form of Exhibit A hereto. (d) Except as specifically provided in this Agreement, the sale and purchase of Sale Assets under this Agreement shall be without recourse to the Sellers; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties and covenants made by such Seller pursuant to the terms of this Agreement. (e) The Buyer, the Administrative Agent, each Lender, each Guarantor, the Backup Servicer and the Collateral Custodian shall not have any obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Sellers (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer or the Collateral Custodian, and any such assumption is expressly disclaimed. (f) In connection with each Purchase of Sale Assets hereunder (other than the initial Purchase), the applicable Seller shall have delivered the Required Receivable File to the Collateral Custodian, no later than 2:00 p.m. (I) two (2) Business Days prior to the related Funding Date with respect to Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables included in the Sale Assets on a prior Purchase Date and (II) five (5) Business Days prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be held by the Collateral Custodian in escrow until such Purchase shall occur on the related Purchase Date. (g) It is the intention of the parties hereto that the conveyances of all right, title and interest of the applicable Seller in and to any Sale Assets to the Buyer as provided in this Section 2.1 shall constitute absolute transfers conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Assets shall not be part of the bankruptcy estate of such Seller in the event of an Insolvency Event with respect to such Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables and the other Sale Assets to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any conveyance provided for in this Section 2.1 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”), then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, to and under the related Sale Assets, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets together with all of the other obligations of such Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens).
Appears in 3 contracts
Samples: Purchase Agreement (CLST Holdings, Inc.), Purchase Agreement (CLST Holdings, Inc.), Purchase Agreement (CLST Holdings, Inc.)
Sale, Transfer and Assignment. (a) On Transfer from the Seller to the Intermediate Seller on the Closing Date. Subject to and upon the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase purchase set forth in Article III), on the Closing Date (or, in the case of each Purchase DateClosing Date Participation, the applicable Elevation Date), the Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, Intermediate Seller and the Buyer Intermediate Seller hereby purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such the Seller (including all obligations of the Seller as lender to fund any Revolving Collateral Obligation or Delayed Drawdown Collateral Obligation conveyed by the Seller to the Intermediate Seller hereunder which obligations the Intermediate Seller hereby assumes) in the property identified in clauses (ii)-(v) through (iii) below, whether constituting below and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, softwareaccessions, supporting obligations, accessions or proceeds and other property consisting of, arising out of, or related to any of such Seller, including the following (in each case excluding any the Excluded Amounts and Retained InterestAmounts) (collectively, together with any of the following relating to any Collateral Obligation conveyed pursuant to Section 2.01(d) below, the “Sale AssetsCollateral”):
(i) the Receivables identified by such Seller as of Collateral Obligations (including the Closing Date Participations and any Purchase Date which are Income Collections thereon) listed on Schedule I the Loan List delivered on the Closing Date by the Seller to the applicable Sale AssignmentIntermediate Seller (as set forth on Schedule 1), together with and all monies due or due, to become due or paid in payment under respect of such Receivables Collateral Obligations on and after the applicable related Purchase Date, including, including but not limited toto all collections on such Collateral Obligations and other recoveries thereon, all Collectionsin each case as they arise after the related Purchase Date;
(ii) all Related Security Liens with respect to the Receivables Collateral Obligations referred to in clause (i) above; and;
(iii) all Related Contracts with respect to the Collateral Obligations referred to in clause (i) above;
(iv) all collateral security granted under any Related Contracts; and
(v) all income and Proceeds proceeds of the foregoing.
(b) Either the Sellers, on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice to the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Date.
(c) The applicable Seller shall, on or prior to each Purchase Date, execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) in the form of Exhibit A hereto.
(d) Except as specifically provided in this Agreement, the sale and purchase of Sale Assets under this Agreement shall be without recourse to the Sellers; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties and covenants made by such Seller pursuant to the terms of this Agreement.
(e) The Buyer, the Administrative Agent, each Lender, each Guarantor, the Backup Servicer and the Collateral Custodian shall not have any obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Sellers (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer or the Collateral Custodian, and any such assumption is expressly disclaimed.
(f) In connection with each Purchase of Sale Assets hereunder (other than the initial Purchase), the applicable Seller shall have delivered the Required Receivable File to the Collateral Custodian, no later than 2:00 p.m. (I) two (2) Business Days prior to the related Funding Date with respect to Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables included in the Sale Assets on a prior Purchase Date and (II) five (5) Business Days prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be held by the Collateral Custodian in escrow until such Purchase shall occur on the related Purchase Date.
(g) It is the intention of the parties hereto that the conveyances of all right, title and interest of the applicable Seller in and to any Sale Assets to the Buyer as provided in this Section 2.1 shall constitute absolute transfers conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Assets shall not be part of the bankruptcy estate of such Seller in the event of an Insolvency Event with respect to such Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables and the other Sale Assets to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any conveyance provided for in this Section 2.1 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”), then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, to and under the related Sale Assets, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets together with all of the other obligations of such Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens).
Appears in 3 contracts
Samples: Master Loan Sale Agreement (Golub Capital BDC 3, Inc.), Master Loan Sale Agreement (GOLUB CAPITAL BDC, Inc.), Master Loan Sale Agreement (GOLUB CAPITAL BDC, Inc.)
Sale, Transfer and Assignment. (a) On the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase set forth in Article III), on each Purchase Date, the applicable Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases and takes from such the Seller, all right, title and interest of such the Seller in the property identified in clauses (i) through (iii) below, whether constituting accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, software, supporting obligations, accessions or other property of such the Seller, including the following (in each case excluding any Excluded Amounts and Retained InterestAmounts) (collectively, the “Sale Assets”):
(i) the Receivables identified by such Seller as of any Purchase Date which are listed on Schedule I to the applicable Sale Assignment, together with all monies due or to become due in payment under such Receivables on and after the applicable Purchase Closing Date, including, but not limited to, all CollectionsCollections and all interest accrued with respect to the Receivables but unpaid as of the Closing Date;
(ii) all Related Security with respect to the Receivables referred to in clause (i) above; and
(iii) all income and Proceeds of the foregoing. For avoidance of doubt, each of Fair, Durham and Xxxxxxx, as the collective “Seller” hereunder, hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer all of such Person’s undivided interest in the Sale Assets, which collectively constitute one hundred percent (100%) of the undivided interests in the Sale Assets.
(b) Either the Sellers, on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice to the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Date.
(c) The applicable Seller shall, on or prior to each Purchase the Closing Date, execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) in the form of Exhibit A C hereto.
(d) Except as specifically provided in this Agreement, the sale and purchase of Sale Assets under this Agreement shall be without recourse to the Sellers; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties and covenants made by such Seller pursuant to the terms of this Agreement.
(ec) The Buyer, the Administrative Agent, each Lender, each Guarantor, the Backup Servicer and the Collateral Custodian Buyer shall not have any obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Sellers Seller (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer or the Collateral Custodian, and any such assumption is expressly disclaimed.
(fd) In connection with each the Purchase of Sale Assets hereunder (other than the initial Purchase)hereunder, the applicable Seller shall have delivered the Required Receivable File Files to the Collateral Custodian, no later than 2:00 p.m. (I) two (2) Business Days Buyer prior to the related Funding Date Closing.
(e) In connection with the transfers contemplated by this Agreement, the Seller hereby grants to the Buyer an irrevocable, non–exclusive license to use, without royalty or payment of any kind, all software used by the Seller to account for the Sale Assets, to the extent necessary to administer the Sale Assets, whether such software is owned by the Seller or is owned by others and used by the Seller under license agreements with respect thereto; provided that should the consent of any licensor of such software be required for the grant of the license described herein to Receivables acquired be effective or for the Seller to assign such license to the Buyer, the Seller hereby agrees that upon the request of the Buyer, the Seller will use its best efforts to obtain the consent of such third—party licensor. The license granted hereby shall be irrevocable. The Seller (i) shall take such action requested by the Buyer from “Sellers” (as such term is defined in time to time hereafter that may be necessary or appropriate to ensure that the Credit Agreement) of Receivables included Buyer and its assigns have an enforceable ownership or security interest in the Sale Assets on a prior Purchase Date purchased by the Buyer as contemplated by this Agreement, and (IIii) five shall use its best efforts to ensure that each of the Buyer has an enforceable right (5whether by license or sublicense or otherwise) Business Days to use all of the computer software used to account for the Sale Assets and/or to recreate the related Servicing Files.
(f) In connection with the purchases by the Buyer of the Sale Assets as contemplated by this Agreement, the Seller further agrees that it will, at its own expense, indicate clearly and unambiguously in its computer files on or prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined Closing Date, and in the Credit Agreement) of Receivables not previously included in the footnotes to its financial statements, that such Sale Assets. The Required Receivable Files shall be held Assets have been purchased by the Collateral Custodian Buyer in escrow until such Purchase shall occur on the related Purchase Dateaccordance with this Agreement.
(g) It is the intention of the parties hereto that the conveyances of all right, title and interest of the applicable Seller in and to any Sale Assets to the Buyer as provided in this Section 2.1 shall constitute absolute transfers conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Assets shall not be part of the bankruptcy estate of such the Seller (or, for avoidance of doubt, any member of Seller, being Fair, Xxxxxxx and Xxxxxx) in the event of an Insolvency Event with respect to such the Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables and the other Sale Assets to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any conveyance provided for in this Section 2.1 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”), then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, to and under the related Sale Assets, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets together with all of the other obligations of such the Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such the Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such the Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens).
Appears in 2 contracts
Samples: Purchase and Sale Agreement (CLST Holdings, Inc.), Purchase and Sale Agreement (CLST Holdings, Inc.)
Sale, Transfer and Assignment. (a) On Transfer from the Seller to the Closing Date Seller on the Closing Date. Subject to and upon the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase purchase set forth in Article III), on the Closing Date (or, in the case of each Purchase DateClosing Date Participation, the applicable Elevation Date), the Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, Closing Date Seller and the Buyer Closing Date Seller hereby purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such the Seller (including all obligations of the Seller as lender to fund any Revolving Collateral Obligation or Delayed Drawdown Collateral Obligation conveyed by the Seller to the Closing Date Seller hereunder which obligations the Closing Date Seller hereby assumes) in the property identified in clauses (ii)-(v) through (iii) below, whether constituting below and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, softwareaccessions, supporting obligations, accessions or proceeds and other property consisting of, arising out of, or related to any of such Seller, including the following (in each case excluding any the Excluded Amounts and Retained InterestAmounts) (collectively, the “Sale AssetsCollateral”):
(i) the Receivables identified by such Seller as of any Purchase Date which are Collateral Obligations listed on Schedule I each Loan List delivered on the Closing Date by the Seller to the applicable Sale Assignment, together with Closing Date Seller (as set forth on Schedule 1) and all monies due or due, to become due or paid in payment under respect of such Receivables Collateral Obligations on and after the applicable Purchase Closing Date, including, including but not limited toto all collections on such Collateral Obligations and other recoveries thereon, all Collectionsin each case as they arise after the Closing Date;
(ii) all Related Security Liens with respect to the Receivables Collateral Obligations referred to in clause (i) above; and;
(iii) all Related Contracts with respect to the Collateral Obligations referred to in clause (i) above;
(iv) all collateral security granted under any Related Contracts; and
(v) all income and Proceeds proceeds of the foregoing.
(b) Either the Sellers, on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice to the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Date.
(c) The applicable Seller shall, on or prior to each Purchase Date, execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) in the form of Exhibit A hereto.
(d) Except as specifically provided in this Agreement, the sale and purchase of Sale Assets under this Agreement shall be without recourse to the Sellers; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties and covenants made by such Seller pursuant to the terms of this Agreement.
(e) The Buyer, the Administrative Agent, each Lender, each Guarantor, the Backup Servicer and the Collateral Custodian shall not have any obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Sellers (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer or the Collateral Custodian, and any such assumption is expressly disclaimed.
(f) In connection with each Purchase of Sale Assets hereunder (other than the initial Purchase), the applicable Seller shall have delivered the Required Receivable File to the Collateral Custodian, no later than 2:00 p.m. (I) two (2) Business Days prior to the related Funding Date with respect to Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables included in the Sale Assets on a prior Purchase Date and (II) five (5) Business Days prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be held by the Collateral Custodian in escrow until such Purchase shall occur on the related Purchase Date.
(g) It is the intention of the parties hereto that the conveyances of all right, title and interest of the applicable Seller in and to any Sale Assets to the Buyer as provided in this Section 2.1 shall constitute absolute transfers conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Assets shall not be part of the bankruptcy estate of such Seller in the event of an Insolvency Event with respect to such Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables and the other Sale Assets to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any conveyance provided for in this Section 2.1 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”), then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, to and under the related Sale Assets, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets together with all of the other obligations of such Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens).
Appears in 2 contracts
Samples: Master Loan Sale Agreement (Golub Capital BDC 3, Inc.), Master Loan Sale Agreement (GOLUB CAPITAL BDC, Inc.)
Sale, Transfer and Assignment. (a) On the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase set forth in Article III), on each Purchase Date, the applicable Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases and takes from such the Seller, all right, title and interest (whether now existing, owned or hereafter acquired or arising and wherever located) of such Seller the Seller, in the property identified in clauses (i) through (iii) below, whether constituting accounts, cash below and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, software, supporting obligations, accessions or other property consisting of, arising out of, or related to any of such Seller, including the following (in each case but excluding any such property constituting Excluded Amounts and Retained Interestthat are for the account of the Seller) (collectively, the “Sale Transferred Assets”):
(i) the Receivables Loans (which, for the avoidance of doubt, may exclude revolving loans or unfunded delayed draw amounts held by the Seller pursuant to the applicable Underlying Instruments related to such Loans) identified by such the Seller as of any the initial Purchase Date which are listed on Schedule I to the applicable Sale AssignmentLoan List attached hereto, and the Loans identified by the Seller as of any additional Purchase Date which are listed on an updated Loan List delivered on such Purchase Date, together with all monies due or to become due in payment under of such Receivables Loans on and after the applicable Purchase Date, including, but not limited to, including all Collections;
(ii) all Related Security Underlying Instruments (other than any equity interests or warrants in the applicable Obligor) with respect to the Receivables Loans referred to in clause (i) above;
(iii) with respect to the Loans selected by the Buyer (or by the Collateral Manager on its behalf) and agreed to by the Seller as of the Effective Date, which Loans are listed on Schedule III hereto as of the Effective Date, all rights, title and interest of the Seller under the Closing Date Participation Agreement including, without limitation, any rights the Seller has thereunder to enter into such agreement; provided that such Loans satisfy the eligibility requirements set forth in the definition of “Eligible Loan” under the Loan and Security Agreement; and
(iiiiv) from and after the applicable Purchase Date, all income and Proceeds of the foregoing. Without limiting the foregoing, the term “Transferred Assets” shall include only the rights and obligations of the Seller in its capacity as lender of record and only with respect to the Loans described on the Loan List (and shall exclude any rights or obligations of the Seller (i) as administrative agent, collateral agent or paying agent for any Agented Loan, (ii) as lender under any loan not included in the Loan List and (iii) as equity holder of any Obligor).
(b) Either The Seller, in connection with each delivery of an updated Loan List hereunder relating to any Transferred Assets to be purchased on any Purchase Date, shall be deemed to have certified, and hereby does certify, with respect to such Transferred Assets to be purchased by the SellersBuyer on such day, that its representations and warranties contained in Article IV are true and correct in all material respects on the one handand as of such day (except for such representations and warranties (x) made as of a specific date, which representations and warranties shall be true and correct in all material respects on an as of such specific date, or (y) as are qualified by materiality, a Material Adverse Effect or any similar qualifier, which representations and warranties shall be true and correct in all respects), with the same effect as though made on and as of such day and that no Default or Event of Default has occurred and is continuing. The Seller and the Buyer acknowledge that the representations and warranties of the Seller in Article IV will run to and be for the benefit of the Administrative Agent on behalf of the Secured Parties, and the Administrative Agent on behalf of the Secured Parties may enforce, directly without joinder of the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery repurchase obligations of written notice the Seller with respect to breaches of certain of the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Daterepresentations and warranties set forth herein.
(c) The applicable Seller shall, on or prior to each Purchase Date, execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) in the form of Exhibit A hereto.
(d) Except as specifically provided in this Agreement, the sale and purchase of Sale Transferred Assets under this Agreement shall be without recourse to the SellersSeller; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties warranties, covenants and covenants indemnities made by such the Seller pursuant to the terms of this Agreement, which in each case shall be subject to Sections 2.2 and 10.9 of this Agreement and which shall be limited to the Purchase Price with respect to the applicable Transferred Asset.
(ed) The Except for future funding obligations under any Transferred Assets, the Buyer, the Administrative Agent, each Lender, each Guarantor, the Backup Servicer Lender and the Collateral Custodian other Secured Parties shall not have any obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Sellers Seller (including any obligation with respect to any other related agreements)). No Except as set forth in the immediately preceding sentence, no such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer Lenders or the Collateral CustodianSecured Parties, and any such assumption is expressly disclaimed.
(fe) In connection with each Purchase of Sale Transferred Assets hereunder (other than the initial Purchase)hereunder, the applicable Seller shall have delivered the Required Receivable File deliver to the Collateral CustodianBuyer or its designee in the case of a Noteless Loan, no later than 2:00 p.m. a copy of each transfer document or instrument relating to such Noteless Loan evidencing the assignment of such Noteless Loan to the Buyer. Within seven (I) two (27) Business Days prior to the related Funding Date with respect to Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables included in the Sale Assets on a prior Purchase Date and (II) five (5) Business Days prior to the related following any Purchase Date with respect to any Transferred Assets, the Seller shall have delivered to the Buyer or its designee all other Receivables acquired Required Loan Documents with respect to such Transferred Assets.
(f) In connection with the transfers contemplated by this Agreement, the Seller hereby grants to each of the Buyer, the Administrative Agent and the Collateral Manager an irrevocable, non-exclusive license to use, without royalty or payment of any kind, all software used by the Seller to account for the Transferred Assets, to the extent necessary to allow the Buyer, the Administrative Agent or the Collateral Manager to administer the Transferred Assets, whether such software is owned by the Seller or is owned by others and used by the Seller under license agreements with respect thereto; provided that should the consent of any licensor of such software be required for the grant of the license described herein, to be effective, the Seller hereby agrees that upon the request of the Buyer or the Administrative Agent, the Seller will use commercially reasonable efforts to obtain the consent of such third-party licensor either before the Effective Date or as soon as possible thereafter. The license granted hereby shall be irrevocable until the Termination Date and shall terminate on the date this Agreement terminates in accordance with its terms. The Seller shall take such action requested by the Buyer or the Administrative Agent, from “Sellers” time to time hereafter, that may be necessary or appropriate to ensure that the Buyer has an enforceable ownership interest and that Administrative Agent (as such term is defined and its assigns), for the benefit of the Secured Parties, under the Loan and Security Agreement have an enforceable security interest in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be held Transferred Assets purchased by the Collateral Custodian Buyer as contemplated by this Agreement.
(g) In connection with the Purchase by the Buyer of the Transferred Assets as contemplated by this Agreement, the Seller shall, at its own expense, indicate clearly and unambiguously in escrow until its computer files and its financial statements, on or prior to each Purchase Date, that such Transferred Assets have been purchased by the Buyer in accordance with this Agreement.
(h) The Seller agrees to deliver to the Buyer on or before each Purchase Date a computer file containing a true, complete and correct Loan List of all Loans to be sold or otherwise conveyed hereunder on such Purchase Date (which shall occur on contain the related Outstanding Balance, Loan number and Obligor name for each Loan) as of the related Purchase Date. Such file or list shall be delivered to the Buyer as confidential and proprietary, and is automatically incorporated into and made a part of this Agreement.
(gi) It is the intention of the parties hereto that the conveyances conveyance of all right, title and interest of the applicable Seller in and to any Sale Transferred Assets to the Buyer as provided in this Section 2.1 shall constitute an absolute transfers transfer conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Transferred Assets shall not be part of the Seller’s bankruptcy estate of such Seller in the event of an Insolvency Event with respect to such the Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables Loans and the other Sale Transferred Assets to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any the conveyance provided for in this Section 2.1 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”)security, then this Agreement shall also be deemed to be, and hereby is, constitute a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller shall be deemed to have granted (and hereby grants grants) to the Buyer a duly perfected, first priority (subject to Permitted Liens) “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, in and to and under the related Sale Transferred Assets, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale the Transferred Assets together with all of the other obligations of such the Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative.
(j) It is the intention of the Seller and the Buyer that this Agreement and the Loan List shall supplement each Transfer Document, if any, required to be executed under any Underlying Instrument relating to any Transferred Asset, and that whenever possible, each provision of this Agreement and the Loan List shall be interpreted in such manner as to be effective and valid under each applicable Underlying Instruments and without replacing or superseding any such Transfer Document. In connection herewithHowever, to the extent that there is a conflict or inconsistency between any provision of this Agreement or the Loan List, on the one hand, and any provision of any Transfer Document, on the other hand, such Transfer Document shall control and prevail solely to the extent any such conflict or inconsistency would invalidate the sale, transfer and assignment contemplated thereby, without invalidating the remainder of such provision of this Agreement or the Loan List or the remaining provisions of this Agreement or the Loan List. The Seller and the Buyer acknowledge and agree that, solely for administrative convenience, this Agreement, the Buyer shall Loan List, and any Transfer Document required to be permitted executed and delivered in connection with the transfer of a Transferred Asset in accordance with the terms of the related Underlying Instruments may reflect that (a) the Seller (or any Affiliate or third party from whom the Seller or the applicable Affiliate may purchase such Transferred Asset) is assigning such Transferred Asset directly to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in or any Affiliate or other designee of the Sale Assets in the event of an Inconsistent Determination Buyer acquiring such Transferred Asset substantially contemporaneously therewith or (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or b) the Buyer, or any amendment to this Agreement being requiredAffiliate or other designee of the Buyer acquiring such Transferred Asset from the Seller, each representation or warranty by is acquiring such Seller attesting as to Transferred Asset at the valid conveyance closing of Sale Assets such Transferred Asset in which case no Transfer Document shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens)necessary.
Appears in 1 contract
Samples: Sale and Contribution Agreement (First Eagle Credit Opportunities Fund)
Sale, Transfer and Assignment. (a) On the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase purchase set forth in Article III), on each Purchase Date, with respect to items of Collateral conveyed by the applicable Seller hereunder, the Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases Purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such the Seller (including all obligations of the Seller as lender to fund any Revolving Collateral Loan or Delayed Funding Loan conveyed by the Seller to Buyer hereunder which obligations Buyer hereby assumes) in the property identified in clauses (ii)-(v) through (iii) below, whether constituting below and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, softwareaccessions, supporting obligations, accessions or proceeds and other property consisting of, arising out of, or related to any of such Seller, including the following (in each case excluding any the Excluded Amounts and Retained InterestAmounts) (collectively, the “Sale AssetsCollateral”):
(i) the Receivables identified by such Seller as of any Purchase Date which are Collateral Loans listed on Schedule I the Loan List on the date hereof and any additional Collateral Loans included on the Loan List from time to time following the applicable Sale Assignmentdate hereof pursuant to this Agreement, together with in each case, including all monies due or due, to become due or paid in payment under respect of such Receivables Collateral Loans on and after the applicable related Purchase Date, including, including but not limited toto all Collections and other recoveries thereon, all Collectionsin each case as they arise after the related Purchase Date;
(ii) all Related Security Liens with respect to the Receivables Collateral Loans referred to in clause (i) above; and;
(iii) all Related Contracts with respect to the Collateral Loans referred to in clause (i) above;
(iv) all collateral security granted under any Related Contracts; and
(v) all income and Proceeds proceeds of the foregoing.
(b) Either the Sellers, on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice In addition to the non-terminating party (i.e.rights of the Buyer to acquire Collateral Loans from the Seller, the Sellers or Buyer may fund directly any Collateral Loan directly as a primary lender at the Buyerorigination thereof (each such Collateral Loan, as the case may be) not less than 30 days prior to the Termination Effective Datea “Buyer Originated Loan”).
(c) The applicable Seller shall, on or prior to From and after each Purchase DateDate following the date hereof, execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) additional Collateral Loans included in the form of Exhibit A heretosupplemented Loan List shall be deemed to be Collateral hereunder.
(d) On any Purchase Date, with respect to the Collateral to be acquired by the Buyer on that date, the Seller shall be deemed to, and hereby does, reaffirm and certify to the Buyer (and on any Purchase Date on and after the Warehouse Closing Date, the Collateral Agent, on behalf of the Secured Parties, and the Administrative Agent), as of such Purchase Date that each of the representations and warranties in Section 4.02 is true and correct in all material respects as of such Purchase Date.
(e) Except as specifically provided in this Agreement, the sale and purchase of Sale Assets Collateral under this Agreement shall be without recourse to the SellersSeller; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties warranties, covenants and covenants indemnities made by such the Seller pursuant to the terms of this Agreement.
(e) The Buyer, all of which obligations are limited so as not to constitute recourse to the Administrative Agent, each Lender, each Guarantor, Seller for the Backup Servicer and the Collateral Custodian shall not have any obligation or liability to any Obligor (including any obligation to perform any credit risk of the obligations of the Sellers (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer or the Collateral Custodian, and any such assumption is expressly disclaimedObligors.
(f) In connection with each Purchase of Sale Assets hereunder Collateral that occurs on or after the Warehouse Closing Date as contemplated by this Agreement, the Buyer hereby directs the Seller to, and the Seller agrees that it will deliver in accordance with the Credit Agreement, or cause to be delivered in accordance with the Credit Agreement (other than on behalf of the initial PurchaseBorrower), to the Custodian, as agent and custodian for the Collateral Agent, each Collateral Loan being transferred to the Buyer on such Purchase Date in accordance with the applicable Seller provisions of the Credit Agreement. On the Warehouse Closing Date and each Purchase Date thereafter, each item of Collateral (including, on the Warehouse Closing Date, each item of Collateral Purchased prior to the Closing Date) shall have be delivered to the Required Receivable File Custodian by:
(i) with respect to such of the Collateral as constitutes an instrument, tangible chattel paper, a negotiable document, or money, causing the Custodian to take possession of such instrument indorsed to the Custodian or in blank, or such money, negotiable document, or tangible chattel paper, in the State of Wisconsin separate and apart from all other property held by the Custodian;
(ii) with respect to such of the Collateral as constitutes a certificated security in bearer form, causing the Custodian to take possession of the related security certificate in the State of Wisconsin;
(iii) with respect to such of the Collateral as constitutes a certificated security in registered form, causing the Custodian to take possession of the related security certificate in the State of Wisconsin, indorsed to the Custodian or in blank by an effective indorsement, or registered in the name of the Custodian, upon original issue or registration of transfer by the issuer of such certificated security;
(iv) with respect to such of the Collateral as constitutes an uncertificated security, causing the issuer of such uncertificated security to register the Custodian or its nominee for the account of the Custodian as the registered owner of such uncertificated security;
(v) with respect to such of the Collateral as constitutes a security entitlement, causing the Securities Intermediary to indicate by book entry that the financial asset relating to such security entitlement has been credited to the Custodial Account;
(vi) with respect to such of the Collateral as constitutes a deposit account, causing such deposit account to be established and maintained in the name of the Collateral Agent or the Custodian, as applicable, by a bank the jurisdiction of which for purposes of the UCC is the State of New York; and
(vii) taking such additional or alternative procedures as may hereafter become appropriate to grant a first priority, perfected security interest in such items of the Collateral to the Collateral CustodianAgent, no later than 2:00 p.m. (I) two (2) Business Days prior to consistent with applicable law or regulations. If any item of Collateral is a financial asset issued by an issuer that is not the related Funding Date with respect to Receivables acquired from “Sellers” (United States of America, an agency or instrumentality thereof, or some other United States person or entity, and if such item cannot be delivered as set forth above, such term is defined in the Credit Agreement) of Receivables included in the Sale Assets on a prior Purchase Date and (II) five (5) Business Days prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall item may be held delivered by the Collateral Custodian Agent holding such item in escrow until an account created and maintained in the name of the Collateral Agent with a banking or securities institution or a clearing agency or system located outside the United States such that the Collateral Agent holds a first priority, perfected security interest in such item of Collateral.
(g) The Seller shall take such action requested by the Buyer or, on and after the Warehouse Closing date, the Administrative Agent, from time to time hereafter, that may be necessary or appropriate to ensure that the Buyer has an enforceable ownership interest and on and after the Warehouse Closing Date, its assigns under the Credit Agreement have an enforceable and perfected security interest in the Collateral Purchased by the Buyer as contemplated by this Agreement.
(h) In connection with the Purchase by the Buyer of the Collateral as contemplated by this Agreement, the Seller further agrees that it will, at its own expense, indicate clearly and unambiguously in its computer files and its financial statements, on or prior to each Purchase Date, that such Collateral has been Purchased by the Buyer in accordance with this Agreement.
(i) The Seller further agrees to deliver to the Buyer on or before each Purchase Date a computer file containing a true, complete and correct Loan List (which shall occur on contain the related Principal Balance, outstanding principal balance and Obligor name for each Collateral Loan) as of the related Purchase Date. Such file or list shall be marked as Schedule I to this Agreement, shall be delivered to the Buyer as confidential and proprietary, and is hereby incorporated into and made a part of this Agreement as such Schedule I may be supplemented and amended from time to time.
(gj) It is the intention of the parties hereto that the conveyances conveyance of all right, title and interest of the applicable Seller in and to any Sale Assets the Collateral to the Buyer as provided in this Section 2.1 2.01 shall constitute an absolute transfers sale, conveyance and transfer conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Assets Collateral shall not be part of the Seller’s bankruptcy estate of such Seller in the event of an Insolvency Event any bankruptcy or insolvency proceedings with respect to such the Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables Collateral Loans and the other Sale Assets Collateral to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any the conveyance provided for in this Section 2.1 2.01 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”)security, then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a duly perfected, first priority “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, in and to and under the related Sale AssetsCollateral, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets the Collateral together with all of the other obligations of such the Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Lawapplicable law, which rights and remedies shall be cumulative. In connection herewithThe Seller authorizes Buyer, the Administrative Agent and the Collateral Agent on behalf of the Secured Parties to file UCC financing statements naming the Seller as “debtor”, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for as “secured party” and on or after the Warehouse Closing Date the Collateral Agent as “assignee secured party”, or similar applicable designations, and describing the Collateral, in each jurisdiction that the Buyer deems necessary in order to have a perfected protect the security interest interests in the Sale Assets Collateral granted under this Section 2.01.
(k) The Seller and the Buyer agree and acknowledge that, in accordance with the event terms of the Retention Letter to be entered into on the Warehouse Closing Date and the Credit Agreement, in relation to every Collateral Loan that the Seller sells or transfers to the Buyer and in connection with each Buyer Originated Loan (excluding any asset acquired pursuant to an Inconsistent Determination (each offer, exchange or exercise of rights or remedies pursuant to a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action Collateral Loan owned by the applicable Seller Buyer), the Seller, either itself or through related entities (including the Buyer), directly or indirectly, was involved or will be involved in negotiating the original agreements which created or will create over 50% (measured by total nominal amount) of all the Collateral Loans acquired (or committed to be acquired) by the Buyer, or any amendment to this Agreement such percentage being required, each representation or warranty by such Seller attesting as to calculated in accordance with clauses (f) and (g) of the valid conveyance definition of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest “Eligibility Criteria” in the Sale Assets, free and clear of all Liens (except for Permitted Liens)Credit Agreement.
Appears in 1 contract
Samples: Master Loan Sale and Contribution Agreement (AB Private Credit Investors Corp)
Sale, Transfer and Assignment. (a) On the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase set forth in Article III), on each Purchase Date, the applicable Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases and takes from such the Seller, in its capacity as lender of record, all right, title and interest (whether now existing, owned or hereafter acquired or arising and wherever located) of such Seller the Seller, in the property identified in clauses (i) through (iii) below, whether constituting accounts, cash below and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, software, supporting obligations, accessions or other property consisting of, arising out of, or related to any of such Seller, including the following (in each case but excluding any such property constituting Excluded Amounts and Retained Interestthat are for the account of Seller) (collectively, the “Sale Transferred Assets”):
(i) the Receivables The Collateral Loans identified by such the Seller as of any the initial Purchase Date which are listed on the Loan List attached hereto, including for the avoidance of doubt any Participations of Collateral Loans which are listed on Schedule I II attached hereto (pending the effectiveness of the assignment thereof in accordance with Section 2.4), and the Collateral Loans identified by the Seller as of any additional Purchase Date which are listed on an updated Loan List delivered on such Purchase Date and agreed to by the applicable Sale AssignmentBuyer (which updated Loan List, upon satisfaction of the conditions to Purchase set forth in Article III shall be incorporated herein by reference, without any further action by the parties hereto), together with all monies due or to become due in payment under of such Receivables Collateral Loans on and after the applicable Purchase Date, including, but not limited to, including all Collections;
(ii) all Underlying Loan Agreements, Underlying Notes and Related Security Documents (including, without limitation, any participation or assignment agreements or any similar agreements related thereto) with respect to the Receivables Collateral Loans (including for the avoidance of doubt any Participations) referred to in clause (i) above;
(iii) all Liens, property, guaranties, supporting obligations ,insurance and other agreements or arrangements of whatever character from time to time supporting or securing payment of any of the foregoing; and
(iiiiv) all income and Proceeds of the foregoing. Without limiting the foregoing, the term “Transferred Assets” (i) shall, for all purposes of this Agreement, be deemed to include any Collateral Loan (including for the avoidance of doubt any Participation with respect thereto) acquired by the Buyer in a transaction in which the Buyer is the designee of the Seller under the instruments of conveyance relating to the applicable Collateral Loan (including for the avoidance of doubt any Participation with respect thereto), subject in each case to the terms of this Agreement (including the representations, warranties, covenants and indemnities of the Seller set forth herein) and (ii) shall include only the rights and obligations of the Seller in its capacity as lender of record and only with respect to the Collateral Loans described on the Loan List (and shall exclude any rights or obligations (i) as administrative agent for any Collateral Loan and (ii) as lender under any loan not included in the Loan List).
(b) Either The Seller, in connection with each delivery of an updated Loan List hereunder relating to any Transferred Assets to be purchased on any Purchase Date, shall be deemed to have certified, and hereby does certify, with respect to such Transferred Assets to be purchased by the SellersBuyer on such day, that its representations and warranties contained in Article IV are true and correct on and as of such day, with the one handsame effect as though made on and as of such day and that no Purchase Termination Event or Unmatured Purchase Termination Event has occurred. The Seller and the Buyer acknowledge that the representations and warranties of the Seller in Article IV will run to and be for the benefit of the Collateral Agent on behalf of the Secured Parties, or and the Collateral Agent on behalf of the Secured Parties may enforce, directly without joinder of the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery repurchase obligations of written notice the Seller with respect to breaches of certain of the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Daterepresentations and warranties set forth herein.
(c) The applicable Seller shall, on or prior to each Purchase Date, execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) in the form of Exhibit A hereto.
(d) Except as specifically provided in this Agreement, the sale and purchase of Sale Transferred Assets under this Agreement shall be without recourse to the SellersSeller; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties warranties, covenants and covenants indemnities made by such the Seller pursuant to the terms of this Agreement.
(ed) The Except for future funding obligations under any Transferred Assets, the Buyer, the Collateral Agent, the Administrative Agent, each Lender, each Guarantor, the Backup Servicer Lender and the Collateral Custodian other Secured Parties shall not have any obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Sellers Seller (including any obligation with respect to any other related agreements)). No Except as set forth in the immediately preceding sentence, no such obligation or liability is intended to be assumed by the Buyer, the Collateral Agent, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer Lenders or the Collateral CustodianSecured Parties, and any such assumption is expressly disclaimed.
(fe) In connection with each Purchase of Sale Transferred Assets hereunder (other than the initial Purchase)hereunder, the applicable Seller shall have delivered deliver, or cause to be delivered, to the Custodian no later than 12:00 noon on any Purchase Date (i) the related Document Checklist and (ii) each of the other Required Receivable File Loan Documents. Promptly after each Purchase of Transferred Assets hereunder, the Seller shall deliver, or cause to be delivered, to the Collateral CustodianAgent with a copy to the Custodian and the Administrative Agent a properly completed Trade Confirmation, no later than 2:00 p.m. if any, on which the Custodian may conclusively rely without further inquiry or investigation, and shall deliver to the Custodian the Loan Files for such Transferred Assets.
(If) two In connection with the transfers contemplated by this Agreement, the Seller hereby grants to each of the Buyer, the Collateral Agent and the Collateral Manager an irrevocable, non–exclusive license to use, without royalty or payment of any kind, all software used by the Seller to account for the Transferred Assets, to the extent necessary to allow the Buyer, the Collateral Agent or the Collateral Manager to administer the Transferred Assets, whether such software is owned by the Seller or is owned by others and used by the Seller under license agreements with respect thereto; provided that should the consent of any licensor of such software be required for the grant of the license described herein, to be effective, the Seller hereby agrees that upon the request of the Buyer or the Collateral Agent, the Seller will use its best reasonable efforts to obtain the consent of such third–party licensor either before the Closing Date or as soon as possible thereafter. The license granted hereby shall be irrevocable until the Final Maturity Date and shall terminate on the date this Agreement terminates in accordance with its terms. The Seller shall take such action requested by the Buyer or the Collateral Agent, from time to time hereafter, that may be necessary or appropriate to ensure that the Buyer has an enforceable ownership interest and that Collateral Agent (2and its assigns), for the benefit of the Secured Parties, under the Credit and Security Agreement have an enforceable security interest in the Transferred Assets purchased by the Buyer as contemplated by this Agreement.
(g) Business Days In connection with the Purchase by the Buyer of the Transferred Assets as contemplated by this Agreement, the Seller shall, at its own expense, indicate clearly and unambiguously in its computer files and its financial statements, on or prior to each Purchase Date, that such Transferred Assets have been purchased by the Buyer in accordance with this Agreement.
(h) The Seller agrees to deliver to the Buyer, the Administrative Agent, the Collateral Agent and the Custodian on or before each Purchase Date a computer file containing a true, complete and correct Loan List of all Collateral Loans to be sold or otherwise conveyed hereunder on such Purchase Date (which shall contain the related Funding Date with respect to Receivables acquired from “Sellers” Principal Balance, Loan number (if any) and Obligor name for each Collateral Loan) as such term is defined in the Credit Agreement) of Receivables included in the Sale Assets on a prior Purchase Date and (II) five (5) Business Days prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be held by the Collateral Custodian in escrow until such Purchase shall occur on the related Purchase Date. Such file or list shall be delivered to the Buyer as confidential and proprietary, and is automatically incorporated into and made a part of this Agreement.
(gi) It is the intention of the parties hereto that the conveyances conveyance of all right, title and interest of the applicable Seller in and to any Sale Transferred Assets to the Buyer as provided in this Section 2.1 shall constitute an absolute transfers transfer conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Transferred Assets shall not be part of the Seller’s bankruptcy estate of such Seller in the event of an Insolvency Event with respect to such the Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables Collateral Loans and the other Sale Transferred Assets to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any the conveyance provided for in this Section 2.1 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”)security, then this Agreement shall also be deemed to be, and hereby is, constitute a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller shall be deemed to have granted (and hereby grants grants) to the Buyer a duly perfected, first priority “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, in and to and under the related Sale Transferred Assets, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale the Transferred Assets together with all of the other obligations of such the Seller hereunder. The Seller and the Buyer shall file or cause to be filed a UCC-1 financing statement naming the Seller, as debtor, the Buyer, as secured party, and the Collateral Agent, as assignee secured party, listing all of the Transferred Assets pledged hereunder as collateral thereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens).
Appears in 1 contract
Samples: Sale, Contribution and Master Participation Agreement (TICC Capital Corp.)
Sale, Transfer and Assignment. (a) On Transfer from the Seller to the Intermediate Seller on the Closing Date. Subject to and upon the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase purchase set forth in Article III), on the Closing Date (or, in the case of each Purchase DateClosing Date Participation Interest, the applicable Elevation Date), the Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, Intermediate Seller and the Buyer Intermediate Seller hereby purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such the Seller (including all obligations of the Seller as lender to fund any Revolving Collateral Obligation or Delayed Drawdown Collateral Obligation conveyed by the Seller to the Intermediate Seller hereunder which obligations the Intermediate Seller hereby assumes) in the property identified in clauses (ii)-(v) through (iiiof this Section 2.01(a) below, whether constituting and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, softwareaccessions, supporting obligations, accessions or proceeds and other property consisting of, arising out of, or related to any of such Seller, including the following (in each case excluding any the Excluded Amounts and Retained InterestAmounts) (collectively, together with any of the following relating to any Collateral Obligation conveyed pursuant to Section 2.01(d) below, the “Sale AssetsCollateral”):
(i) the Receivables identified by such Seller as of Collateral Obligations (including the Closing Date Participation Interests and any Purchase Date which are Income Collections thereon) listed on Schedule I the Loan List delivered on the Closing Date by the Seller to the applicable Sale AssignmentIntermediate Seller (as set forth on Schedule 1), together with and all monies due or due, to become due or paid in payment under respect of such Receivables Collateral Obligations on and after the applicable related Purchase Date, including, including but not limited toto all collections on such Collateral Obligations and other recoveries thereon, all Collectionsin each case as they arise after the related Purchase Date;
(ii) all Related Security Liens with respect to the Receivables Collateral Obligations referred to in clause (i) above; and;
(iii) all Related Contracts with respect to the Collateral Obligations referred to in clause (i) above;
(iv) all collateral security granted under any Related Contracts; and
(v) all income and Proceeds proceeds of the foregoing.
(b) Either the Sellers, on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice to the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Date.
(c) The applicable Seller shall, on or prior to each Purchase Date, execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) in the form of Exhibit A hereto.
(d) Except as specifically provided in this Agreement, the sale and purchase of Sale Assets under this Agreement shall be without recourse to the Sellers; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties and covenants made by such Seller pursuant to the terms of this Agreement.
(e) The Buyer, the Administrative Agent, each Lender, each Guarantor, the Backup Servicer and the Collateral Custodian shall not have any obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Sellers (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer or the Collateral Custodian, and any such assumption is expressly disclaimed.
(f) In connection with each Purchase of Sale Assets hereunder (other than the initial Purchase), the applicable Seller shall have delivered the Required Receivable File to the Collateral Custodian, no later than 2:00 p.m. (I) two (2) Business Days prior to the related Funding Date with respect to Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables included in the Sale Assets on a prior Purchase Date and (II) five (5) Business Days prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be held by the Collateral Custodian in escrow until such Purchase shall occur on the related Purchase Date.
(g) It is the intention of the parties hereto that the conveyances of all right, title and interest of the applicable Seller in and to any Sale Assets to the Buyer as provided in this Section 2.1 shall constitute absolute transfers conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Assets shall not be part of the bankruptcy estate of such Seller in the event of an Insolvency Event with respect to such Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables and the other Sale Assets to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any conveyance provided for in this Section 2.1 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”), then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, to and under the related Sale Assets, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets together with all of the other obligations of such Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens).
Appears in 1 contract
Samples: Master Loan Sale Agreement (PennantPark Floating Rate Capital Ltd.)
Sale, Transfer and Assignment. (a) On the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase purchase set forth in Article III), on each Purchase Date, with respect to items of Collateral conveyed by the applicable Seller hereunder, the Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases Purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such the Seller (including all obligations of the Seller as lender to fund any Revolving Collateral Loan or Delayed Funding Loan conveyed by the Seller to Buyer hereunder which obligations Buyer hereby assumes) in the property identified in clauses (ii)-(v) through (iii) below, whether constituting below and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, softwareaccessions, supporting obligations, accessions or proceeds and other property consisting of, arising out of, or related to any of such Seller, including the following (in each case excluding any the Excluded Amounts and Retained InterestAmounts) (collectively, the “Sale AssetsCollateral”):
(i) the Receivables identified by such Seller as of any Purchase Date which are Collateral Loans listed on Schedule I the Loan List on the date hereof and any additional Collateral Loans included on the Loan List from time to time following the applicable Sale Assignmentdate hereof pursuant to this Agreement, together with in each case, including all monies due or due, to become due or paid in payment under respect of such Receivables Collateral Loans on and after the applicable related Purchase Date, including, including but not limited toto all Collections and other recoveries thereon, all Collectionsin each case as they arise after the related Purchase Date;
(ii) all Related Security Liens with respect to the Receivables Collateral Loans referred to in clause (i) above; and;
(iii) all Related Contracts with respect to the Collateral Loans referred to in clause (i) above;
(iv) all collateral security granted under any Related Contracts; and
(v) all income and Proceeds proceeds of the foregoing.
(b) Either the Sellers, on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice In addition to the non-terminating party (i.e.rights of the Buyer to acquire Collateral Loans from the Seller, the Sellers or Buyer may fund directly any Collateral Loan directly as a primary lender at the Buyerorigination thereof (each such Collateral Loan, as the case may be) not less than 30 days prior to the Termination Effective Datea “Buyer Originated Loan”).
(c) The applicable Seller shall, on or prior to From and after each Purchase DateDate following the date hereof, execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) additional Collateral Loans included in the form of Exhibit A heretosupplemented Loan List shall be deemed to be Collateral hereunder.
(d) On any Purchase Date, with respect to the Collateral to be acquired by the Buyer on that date, the Seller shall be deemed to, and hereby does, reaffirm and certify to the Buyer (and on any Purchase Date on and after the Warehouse Closing Date, the Collateral Agent, on behalf of the Secured Parties, and the Administrative Agent), as of such Purchase Date that each of the representations and warranties in Section 4.02 is true and correct in all material respects as of such Purchase Date.
(e) Except as specifically provided in this Agreement, the sale and purchase of Sale Assets Collateral under this Agreement shall be without recourse to the SellersSeller; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties warranties, covenants and covenants indemnities made by such the Seller pursuant to the terms of this Agreement.
(e) The Buyer, all of which obligations are limited so as not to constitute recourse to the Administrative Agent, each Lender, each Guarantor, Seller for the Backup Servicer and the Collateral Custodian shall not have any obligation or liability to any Obligor (including any obligation to perform any credit risk of the obligations of the Sellers (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer or the Collateral Custodian, and any such assumption is expressly disclaimedObligors.
(f) In connection with each Purchase of Sale Assets hereunder Collateral that occurs on or after the Warehouse Closing Date as contemplated by this Agreement, the Buyer hereby directs the Seller to, and the Seller agrees that it will deliver in accordance with the Credit Agreement, or cause to be delivered in accordance with the Credit Agreement (other than on behalf of the initial PurchaseBorrower), the applicable Seller shall have delivered the Required Receivable File to the Collateral CustodianAgent, no later than 2:00 p.m. each Collateral Loan being transferred to the Buyer on such Purchase Date in accordance with the applicable provisions of the Credit Agreement. On the Warehouse Closing Date and each Purchase Date thereafter, each item of Collateral (I) two (2) Business Days including, on the Warehouse Closing Date, each item of Collateral Purchased prior to the related Funding Date Closing Date) shall be delivered to the Collateral Agent by:
(i) with respect to Receivables acquired from “Sellers” such of the Collateral as constitutes an instrument, tangible chattel paper, a negotiable document, or money, causing the Collateral Agent (as or the Securities Intermediary on its behalf) to take possession of such term is defined instrument indorsed to the Collateral Agent or in blank, or such money, negotiable document, or tangible chattel paper, in the Credit Agreement) State of Receivables included in the Sale Assets on a prior Purchase Date Wisconsin separate and (II) five (5) Business Days prior to the related Purchase Date with respect to apart from all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be property held by the Collateral Custodian Agent;
(ii) with respect to such of the Collateral as constitutes a certificated security in escrow until bearer form, causing the Collateral Agent (or the Securities Intermediary on its behalf) to take possession of the related security certificate in the State of Wisconsin;
(iii) with respect to such of the Collateral as constitutes a certificated security in registered form, causing the Collateral Agent (or the Securities Intermediary on its behalf) to take possession of the related security certificate in the State of Wisconsin, indorsed to the Collateral Agent or in blank by an effective indorsement, or registered in the name of the Collateral Agent, upon original issue or registration of transfer by the issuer of such certificated security;
(iv) with respect to such of the Collateral as constitutes an uncertificated security, causing the issuer of such uncertificated security to register the Collateral Agent (or the Securities Intermediary on its behalf) or its nominee for the account of the Collateral Agent (or the Securities Intermediary on its behalf) as the registered owner of such uncertificated security;
(v) with respect to such of the Collateral as constitutes a security entitlement, causing the Securities Intermediary to indicate by book entry that the financial asset relating to such security entitlement has been credited to the Custodial Account;
(vi) with respect to such of the Collateral as constitutes a deposit account, causing such deposit account to be established and maintained in the name of the Collateral Agent or the Securities Intermediary, as applicable, by a bank the jurisdiction of which for purposes of the UCC is the State of New York; and
(vii) taking such additional or alternative procedures as may hereafter become appropriate to grant a first priority, perfected security interest in such items of the Collateral to the Collateral Agent, consistent with applicable law or regulations. If any item of Collateral is a financial asset issued by an issuer that is not the United States of America, an agency or instrumentality thereof, or some other United States person or entity, and if such item cannot be delivered as set forth above, such item may be delivered by the Collateral Agent holding such item in an account created and maintained in the name of the Collateral Agent with a banking or securities institution or a clearing agency or system located outside the United States such that the Collateral Agent holds a first priority, perfected security interest in such item of Collateral.
(g) The Seller shall take such action requested by the Buyer or, on and after the Warehouse Closing date, the Administrative Agent, from time to time hereafter, that may be necessary or appropriate to ensure that the Buyer has an enforceable ownership interest and on and after the Warehouse Closing Date, its assigns under the Credit Agreement have an enforceable and perfected security interest in the Collateral Purchased by the Buyer as contemplated by this Agreement.
(h) In connection with the Purchase by the Buyer of the Collateral as contemplated by this Agreement, the Seller further agrees that it will, at its own expense, indicate clearly and unambiguously in its computer files and its financial statements, on or prior to each Purchase Date, that such Collateral has been Purchased by the Buyer in accordance with this Agreement.
(i) The Seller further agrees to deliver to the Buyer on or before each Purchase Date a computer file containing a true, complete and correct Loan List (which shall occur on contain the related Principal Balance, outstanding principal balance and Obligor name for each Collateral Loan) as of the related Purchase Date. Such file or list shall be marked as Schedule I to this Agreement, shall be delivered to the Buyer as confidential and proprietary, and is hereby incorporated into and made a part of this Agreement as such Schedule I may be supplemented and amended from time to time.
(gj) It is the intention of the parties hereto that the conveyances conveyance of all right, title and interest of the applicable Seller in and to any Sale Assets the Collateral to the Buyer as provided in this Section 2.1 2.01 shall constitute an absolute transfers sale, conveyance and transfer conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Assets Collateral shall not be part of the Seller’s bankruptcy estate of such Seller in the event of an Insolvency Event any bankruptcy or insolvency proceedings with respect to such the Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables Collateral Loans and the other Sale Assets Collateral to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any the conveyance provided for in this Section 2.1 2.01 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”)security, then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a duly perfected, first priority “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, in and to and under the related Sale AssetsCollateral, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets the Collateral together with all of the other obligations of such the Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Lawapplicable law, which rights and remedies shall be cumulative. In connection herewithThe Seller authorizes Buyer, the Administrative Agent and the Collateral Agent on behalf of the Secured Parties to file UCC financing statements naming the Seller as “debtor”, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for as “secured party” and on or after the Warehouse Closing Date the Collateral Agent as “assignee secured party”, or similar applicable designations, and describing the Collateral, in each jurisdiction that the Buyer deems necessary in order to have a perfected protect the security interest interests in the Sale Assets Collateral granted under this Section 2.01.
(k) The Seller and the Buyer agree and acknowledge that, in accordance with the event terms of the Retention Letter to be entered into on the Warehouse Closing Date and the Credit Agreement, in relation to every Collateral Loan that the Seller sells or transfers to the Buyer and in connection with each Buyer Originated Loan (excluding any asset acquired pursuant to an Inconsistent Determination (each offer, exchange or exercise of rights or remedies pursuant to a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action Collateral Loan owned by the applicable Seller Buyer), the Seller, either itself or through related entities (including the Buyer), directly or indirectly, was involved or will be involved in negotiating the original agreements which created or will create over 50% (measured by total nominal amount) of all the Collateral Loans acquired (or committed to be acquired) by the Buyer, or any amendment to this Agreement such percentage being required, each representation or warranty by such Seller attesting as to calculated in accordance with clauses (f) and (g) of the valid conveyance definition of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest “Eligibility Criteria” in the Sale Assets, free and clear of all Liens (except for Permitted Liens)Credit Agreement.
Appears in 1 contract
Samples: Master Loan Sale and Contribution Agreement (AB Private Credit Investors Corp)
Sale, Transfer and Assignment. (a) On Transfer from the Seller to the Depositor. Subject to and upon the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase purchase set forth in Article III), on each Purchase Date, the applicable Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the BuyerDepositor, and the Buyer Depositor hereby purchases Purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such the Seller (including all obligations of the Seller as lender to fund any Revolving Collateral Obligation or Delayed Drawdown Collateral Obligation conveyed by the Seller to the Depositor hereunder which obligations the Depositor hereby assumes) in the property identified in clauses (ii)-(v) through (iii) below, whether constituting below and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, softwareaccessions, supporting obligations, accessions or proceeds and other property consisting of, arising out of, or related to any of such Seller, including the following (in each case excluding any the Excluded Amounts and Retained InterestAmounts) (collectively, the “Sale AssetsCollateral”):
(i) the Receivables identified by such Seller as of any Purchase Date which are Collateral Obligations listed on Schedule I the Loan List delivered by the Seller to the applicable Sale AssignmentDepositor and the Buyer from time to time pursuant to this Agreement, together with and all monies due or due, to become due or paid in payment under respect of such Receivables Collateral Obligations on and after the applicable related Purchase Date, including, including but not limited toto all collections on the Collateral Obligations and other recoveries thereon, all Collectionsin each case as they arise after the related Purchase Date;
(ii) all Related Security Liens with respect to the Receivables Collateral Obligations referred to in clause (i) above; and;
(iii) all Related Contracts with respect to the Collateral Obligations referred to in clause (i) above;
(iv) all collateral security granted under any Related Contracts; and
(v) all income and Proceeds proceeds of the foregoing.
(b) Either the Sellers, on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice to the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Date.
(c) The applicable Seller shall, on or prior to each Purchase Date, execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) in the form of Exhibit A hereto.
(d) Except as specifically provided in this Agreement, the sale and purchase of Sale Assets under this Agreement shall be without recourse to the Sellers; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties and covenants made by such Seller pursuant to the terms of this Agreement.
(e) The Buyer, the Administrative Agent, each Lender, each Guarantor, the Backup Servicer and the Collateral Custodian shall not have any obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Sellers (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer or the Collateral Custodian, and any such assumption is expressly disclaimed.
(f) In connection with each Purchase of Sale Assets hereunder (other than the initial Purchase), the applicable Seller shall have delivered the Required Receivable File to the Collateral Custodian, no later than 2:00 p.m. (I) two (2) Business Days prior to the related Funding Date with respect to Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables included in the Sale Assets on a prior Purchase Date and (II) five (5) Business Days prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be held by the Collateral Custodian in escrow until such Purchase shall occur on the related Purchase Date.
(g) It is the intention of the parties hereto that the conveyances of all right, title and interest of the applicable Seller in and to any Sale Assets to the Buyer as provided in this Section 2.1 shall constitute absolute transfers conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Assets shall not be part of the bankruptcy estate of such Seller in the event of an Insolvency Event with respect to such Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables and the other Sale Assets to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any conveyance provided for in this Section 2.1 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”), then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, to and under the related Sale Assets, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets together with all of the other obligations of such Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens).
Appears in 1 contract
Samples: Loan Sale and Contribution Agreement (AB Private Credit Investors Corp)
Sale, Transfer and Assignment. (a) On the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase purchase set forth in Article ARTICLE III), on each Purchase Date, the applicable Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases Purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such the Seller (including all obligations of the Seller as lender to fund any Delayed Drawdown Loan conveyed by the Seller to Buyer hereunder which obligations Buyer hereby assumes) in the property identified in clauses (ii)-(v) through (iii) below, whether constituting below and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, softwareaccessions, supporting obligations, accessions or proceeds and other property consisting of, arising out of, or related to any of such Seller, including the following (in each case above and below excluding any the Excluded Amounts and Retained InterestAmounts) (collectively, the “Sale Transferred Assets”):
(i) the Receivables identified Collateral Obligations listed on each Collateral Obligation List delivered by the Seller to the Buyer with respect to such Seller as of any Purchase Date which are listed on Schedule I pursuant to the applicable Sale Assignment, together with this Section 2.01(a) and all monies due or due, to become due or paid in payment under respect of such Receivables Collateral Obligations on and after the applicable related Purchase Date, including, including but not limited toto all Collections and other recoveries thereon, all Collectionsin each case as they arise after the related Purchase Date;
(ii) all Related Security Liens with respect to the Receivables Collateral Obligations referred to in clause (i) above (except to the extent such Liens are held in a capacity as an administrative agent or collateral agent);
(iii) all guaranties, indemnities and warranties, insurance policies, financing statements and other agreements or arrangements of whatever character from time to time supporting or securing payment of the Collateral Obligations referred to in clause (i) above (except to the extent such Liens are held in a capacity as an administrative agent or collateral agent);
(iv) all Related Documents with respect to the Collateral Obligations referred to in clause (i) above; and
(iiiv) all income and Proceeds proceeds of the foregoing. For the avoidance of doubt, and without limiting the foregoing, the term “Transferred Assets” shall, for all purposes of this Agreement, be deemed to include any Collateral Obligation funded directly by the Buyer that is an obligation with respect to which the Seller, either itself or through related entities (other than the Buyer), directly or indirectly, was involved in the original agreement which created such obligation, or any Collateral Obligation acquired by the Buyer as provided in Section 2.03(d).
(b) Either From and after each Purchase Date, the Sellers, Transferred Assets listed on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice relevant Collateral Obligation List shall be deemed to the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Datebe Transferred Assets hereunder.
(c) The applicable Seller shall, on or prior to each Purchase Date, execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) in the form of Exhibit A hereto.
(d) Except as specifically provided in this Agreement, the sale and purchase of Sale Transferred Assets under this Agreement shall be without recourse to the SellersSeller; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties warranties, covenants and covenants indemnities made by such the Seller pursuant to the terms of this Agreement, all of which obligations are limited so as not to constitute recourse to the Seller for the credit risk of the Underlying Obligors. The representations and warranties of Seller with respect to the Transferred Assets do not address the creditworthiness of the Underlying Obligor on such Transferred Assets or the risk of default or declines in credit quality with respect to such Transferred Assets after the related Purchase Date or Funding Date, as applicable. The sale and purchase of any Transferred Asset hereunder does not constitute and is not intended to result in a creation or assumption by the Buyer or any assignee of the Buyer (including the Bank for the benefit of the Secured Parties), of any obligation of the Seller or any other person as administrative agent, collateral agent or paying agent under any Collateral Obligation.
(e) The Buyer, the Administrative Agent, each Lender, each Guarantor, the Backup Servicer and the Collateral Custodian shall not have any obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Sellers (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer or the Collateral Custodian, and any such assumption is expressly disclaimed.
(fd) In connection with each Purchase of Sale Transferred Assets hereunder (other than the initial Purchase)under and in accordance with this Agreement, the applicable Buyer hereby directs the Seller to, and the Seller agrees that it will deliver, or cause to be delivered, to the Securities Intermediary, each Collateral Obligation and the Related Documents being transferred to the Buyer on such Purchase Date. The Seller shall take such action reasonably requested by the Buyer or the Bank, from time to time hereafter, that may be necessary or appropriate to ensure that the Buyer has an enforceable ownership interest and its assigns under the Credit Agreement have delivered the Required Receivable File to the Collateral Custodian, no later than 2:00 p.m. (I) two (2) Business Days prior to the related Funding Date with respect to Receivables acquired from “Sellers” (as such term is defined an enforceable and perfected security interest in the Credit Transferred Assets Purchased by the Buyer as contemplated by this Agreement.
(e) In connection with each Purchase by the Buyer of Receivables included Transferred Assets as contemplated by this Agreement, the Seller further agrees that it will, at its own expense, indicate clearly and unambiguously in the Sale Assets its computer files and its financial statements, on a prior Purchase Date and (II) five (5) Business Days or prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as Date, that such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be held Transferred Assets have been Purchased by the Buyer in accordance with this Agreement.
(f) The Seller further agrees to deliver to the Buyer on or before each Purchase Date a computer file containing a true, complete and correct Collateral Custodian in escrow until such Purchase Obligation List (which shall occur on contain the related outstanding principal balance, loan number and Underlying Obligor name for each Collateral Obligation) as of the related Purchase Date. Such file or list shall be marked as Schedule I to this Agreement, shall be delivered to the Buyer as confidential and proprietary, and is hereby incorporated into and made a part of this Agreement as such Schedule I may be supplemented and amended from time to time.
(g) It is the intention of the parties hereto that the conveyances conveyance of all right, title and interest of the applicable Seller in and to any Sale the Transferred Assets by the Seller to the Buyer as provided in this Section 2.1 2.01 shall constitute an absolute transfers sale, conveyance and transfer conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Transferred Assets shall not be part of the Seller’s bankruptcy estate of such Seller in the event of an Insolvency Event a bankruptcy, insolvency, reorganization, liquidation or similar proceeding of the Seller (or in the event that a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed with respect to such the Seller). Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables Collateral Obligations and the other Sale Transferred Assets to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any the conveyance provided for in this Section 2.1 2.01 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”)security, then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a duly perfected, first priority “security interest” within the meaning of Article 9 of the UCC in all of its Seller’s right, title and interest in, in and to and under the related Sale Transferred Assets, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale the Transferred Assets together with all of the other obligations of such the Seller hereunder, and the Buyer hereby assigns all of its right, title and interest in such security interest to the Bank, for the benefit of the Secured Parties. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens).
Appears in 1 contract
Samples: Loan Sale and Contribution Agreement (Overland Advantage)
Sale, Transfer and Assignment. (a) On the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase set forth in Article III), on each the Purchase Date, the applicable Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases and takes from such the Seller, in its capacity as lender of record, all right, title and interest (whether now existing, owned or hereafter acquired or arising and wherever located) of such Seller the Seller, in the property identified in clauses (i) through (iii) below, whether constituting accounts, cash below and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, software, supporting obligations, accessions or other property consisting of, arising out of, or related to any of such Seller, including the following (in each case but excluding any such property constituting Excluded Amounts and Retained Interestthat are for the account of Seller) (collectively, the “Sale Transferred Assets”):
(i) the Receivables The Collateral Loans identified by such the Seller as and which are listed on the Loan List attached hereto, including for the avoidance of doubt any Purchase Date Participations of Collateral Loans which are listed on Schedule I II attached hereto (pending the effectiveness of the assignment thereof in accordance with Section 2.4) and any Substituted Collateral Loans transferred to the applicable Sale AssignmentBuyer in connection with a Warranty Event, together with all monies due or to become due in payment under of such Receivables Collateral Loans on and after the applicable Purchase Date, including, but not limited to, including all Collections;
(ii) all Underlying Loan Agreements, Underlying Notes and Related Security Documents (including, without limitation, any participation or assignment agreements or any similar agreements related thereto) with respect to the Receivables Collateral Loans (including for the avoidance of doubt any Participations) referred to in clause (i) above;
(iii) all Liens, property, guaranties, supporting obligations, insurance and other agreements or arrangements of whatever character from time to time supporting or securing payment of any of the foregoing; and
(iiiiv) all income and Proceeds of the foregoing. Without limiting the foregoing, the term “Transferred Assets” (i) shall, for all purposes of this Agreement, be deemed to include any Collateral Loan (including for the avoidance of doubt any Participation with respect thereto) acquired by the Buyer in a transaction in which the Buyer is the designee of the Seller under the instruments of conveyance relating to the applicable Collateral Loan (including for the avoidance of doubt any Participation with respect thereto), subject in each case to the terms of this Agreement (including the representations, warranties, covenants and indemnities of the Seller set forth herein) and (ii) shall include only the rights and obligations of the Seller in its capacity as lender of record and only with respect to the Collateral Loans described on the Loan List (and shall exclude any rights or obligations (i) as administrative agent for any Collateral Loan and (ii) as lender under any loan not included in the Loan List).
(b) Either The Seller shall be deemed to have certified, and hereby does certify, with respect to the Sellers, Transferred Assets to be purchased by the Buyer on the one handPurchase Date, or that its representations and warranties contained in Article IV are true and correct on and as of the Purchase Date. The Seller and the Buyer acknowledge that the representations and warranties of the Seller in Article IV will run to and be for the benefit of the Collateral Agent on behalf of the Secured Parties, and the Collateral Agent on behalf of the Secured Parties may enforce, directly without joinder of the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery repurchase obligations of written notice the Seller with respect to breaches of certain of the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Daterepresentations and warranties set forth herein.
(c) The applicable Seller shall, on or prior to each Purchase Date, execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) in the form of Exhibit A hereto.
(d) Except as specifically provided in this Agreement, the sale and purchase of Sale Transferred Assets under this Agreement shall be without recourse to the SellersSeller; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties warranties, covenants and covenants indemnities made by such the Seller pursuant to the terms of this Agreement.
(ed) The Except for future funding obligations under any Transferred Assets, the Buyer, the Collateral Agent, the Administrative Agent, each Lender, each Guarantor, the Backup Servicer Lender and the Collateral Custodian other Secured Parties shall not have any obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Sellers Seller (including any obligation with respect to any other related agreements)). No Except as set forth in the immediately preceding sentence, no such obligation or liability is intended to be assumed by the Buyer, the Collateral Agent, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer Lenders or the Collateral CustodianSecured Parties, and any such assumption is expressly disclaimed.
(e) In connection with the Purchase of Transferred Assets hereunder, the Seller shall deliver, or cause to be delivered, to the Custodian no later than 12:00 noon on the Purchase Date (i) the related Document Checklist and (ii) each of the other Required Loan Documents. Promptly after the Purchase of Transferred Assets hereunder, the Seller shall deliver, or cause to be delivered, to the Collateral Agent with a copy to the Custodian and the Administrative Agent a properly completed Trade Confirmation, if any, on which the Custodian may conclusively rely without further inquiry or investigation, and shall deliver to the Custodian the Loan Files for the Transferred Assets.
(f) In connection with the transfers contemplated by this Agreement, the Seller hereby grants to each Purchase of Sale Assets hereunder the Buyer, the Collateral Agent and the Collateral Manager an irrevocable, non–exclusive license to use, without royalty or payment of any kind, all software used by the Seller to account for the Transferred Assets, to the extent necessary to allow the Buyer, the Collateral Agent or the Collateral Manager to administer the Transferred Assets, whether such software is owned by the Seller or is owned by others and used by the Seller under license agreements with respect thereto; provided that should the consent of any licensor of such software be required for the grant of the license described herein, to be effective, the Seller hereby agrees that upon the request of the Buyer or the Collateral Agent, the Seller will use its best reasonable efforts to obtain the consent of such third–party licensor either before the Closing Date or as soon as possible thereafter. The license granted hereby shall be irrevocable until the Final Maturity Date and shall terminate on the date this Agreement terminates in accordance with its terms. The Seller shall take such action requested by the Buyer or the Collateral Agent, from time to time hereafter, that may be necessary or appropriate to ensure that the Buyer has an enforceable ownership interest and that Collateral Agent (other than the initial Purchaseand its assigns), for the applicable Seller shall benefit of the Secured Parties, under the Credit and Security Agreement have delivered the Required Receivable File to the Collateral Custodian, no later than 2:00 p.m. (I) two (2) Business Days prior to the related Funding Date with respect to Receivables acquired from “Sellers” (as such term is defined an enforceable security interest in the Credit Agreement) of Receivables included in the Sale Transferred Assets on a prior Purchase Date and (II) five (5) Business Days prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be held purchased by the Collateral Custodian in escrow until such Purchase shall occur on the related Purchase DateBuyer as contemplated by this Agreement.
(g) In connection with the Purchase by the Buyer of the Transferred Assets as contemplated by this Agreement, the Seller shall, at its own expense, indicate clearly and unambiguously in its computer files and its financial statements, on or prior to the Purchase Date, that the Transferred Assets have been purchased by the Buyer in accordance with this Agreement.
(h) The Seller agrees to deliver to the Buyer, the Administrative Agent, the Collateral Agent and the Custodian on or before the Purchase Date a computer file containing a true, complete and correct Loan List of all Collateral Loans to be sold or otherwise conveyed hereunder on the Purchase Date (which shall contain the related Principal Balance, Loan number (if any) and Obligor name for each Collateral Loan) as of the Purchase Date. Such file or list shall be delivered to the Buyer as confidential and proprietary, and is automatically incorporated into and made a part of this Agreement.
(i) It is the intention of the parties hereto that the conveyances conveyance of all right, title and interest of the applicable Seller in and to any Sale Transferred Assets to the Buyer as provided in this Section 2.1 shall constitute an absolute transfers transfer conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Transferred Assets shall not be part of the Seller’s bankruptcy estate of such Seller in the event of an Insolvency Event with respect to such the Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables Collateral Loans and the other Sale Transferred Assets to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any the conveyance provided for in this Section 2.1 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”)security, then this Agreement shall also be deemed to be, and hereby is, constitute a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller shall be deemed to have granted (and hereby grants grants) to the Buyer a duly perfected, first priority “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, in and to and under the related Sale Transferred Assets, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale the Transferred Assets together with all of the other obligations of such the Seller hereunder. The Seller and the Buyer shall file or cause to be filed a UCC-1 financing statement naming the Seller, as debtor, the Buyer, as secured party, and the Collateral Agent, as assignee secured party, listing all of the Transferred Assets pledged hereunder as collateral thereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens).
Appears in 1 contract
Samples: Sale, Contribution and Master Participation Agreement (Oxford Square Capital Corp.)
Sale, Transfer and Assignment. (a) On Transfer from the Seller to the Buyer on the 2024 Closing Date. Subject to and upon the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase purchase set forth in Article III), on each Purchase the 2024 Closing Date, the applicable Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, Buyer and the Buyer hereby purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such the Seller (including all obligations of the Seller as lender to fund any Revolving Collateral Obligation or Delayed Drawdown Collateral Obligation conveyed by the Seller to the Buyer hereunder which obligations the Buyer hereby assumes) in the property identified in clauses (ii)-(v) through (iii) below, whether constituting below and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, softwareaccessions, supporting obligations, accessions or proceeds and other property consisting of, arising out of, or related to any of such Seller, including the following (in each case excluding any the Excluded Amounts and Retained InterestAmounts) (collectively, together with any of the following relating to any Collateral Obligation conveyed pursuant to Section 2.01(b) below, the “Sale AssetsCollateral”):
): (i) the Receivables identified by such Seller as of any Purchase Date which are Collateral Obligations listed on Schedule I each Loan List delivered on the 2024 Closing Date by the Seller to the applicable Sale Assignment, together with Buyer (as set forth on Schedule 1) and all monies due or due, to become due or paid in payment under respect of such Receivables Collateral Obligations on and after the applicable related Purchase Date, including, including but not limited toto all collections on such Collateral Obligations and other recoveries thereon, all Collections;
in each case as they arise after the related Purchase Date; (ii) all Related Security Liens with respect to the Receivables Collateral Obligations referred to in clause (i) above; and
(iii) all Related Contracts with respect to the Collateral Obligations referred to in clause (i) above; (iv) all collateral security granted under any Related Contracts; and (v) all income and Proceeds proceeds of the foregoing.
(b) Either Transfer from the Sellers, on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice to the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Date.
(c) The applicable Seller shall, on or prior to each Purchase Date, execute and deliver to the Buyer a certificate of assignment (on each Purchase Date after the “Sale Assignment”) in 2024 Closing Date. Subject to and upon the form of Exhibit A hereto.
(d) Except as specifically provided terms and conditions set forth in this AgreementAgreement (including the conditions to purchase set forth in Article III), on each Purchase Date occurring after the sale and purchase of Sale Assets under this Agreement shall be without recourse 2024 Closing Date, with respect to the Sellers; however, it being understood that items of Collateral conveyed on such Purchase Date by the applicable Seller shall be liable to the Buyer for all representations, warranties and covenants made by such Seller pursuant to the terms of this Agreement.
(e) The Buyerhereunder, the Administrative Agent, each Lender, each Guarantor, the Backup Servicer and the Collateral Custodian shall not have any obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Sellers (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer or the Collateral Custodian, and any such assumption is expressly disclaimed.
(f) In connection with each Purchase of Sale Assets hereunder (other than the initial Purchase), the applicable Seller shall have delivered the Required Receivable File to the Collateral Custodian, no later than 2:00 p.m. (I) two (2) Business Days prior to the related Funding Date with respect to Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables included in the Sale Assets on a prior Purchase Date and (II) five (5) Business Days prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be held by the Collateral Custodian in escrow until such Purchase shall occur on the related Purchase Date.
(g) It is the intention of the parties hereto that the conveyances of all right, title and interest of the applicable Seller in and to any Sale Assets to the Buyer as provided in this Section 2.1 shall constitute absolute transfers conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Assets shall not be part of the bankruptcy estate of such Seller in the event of an Insolvency Event with respect to such Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables and the other Sale Assets to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any conveyance provided for in this Section 2.1 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”), then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a “security interest” within the meaning of Article 9 of the UCC in all of its rightsells, title transfers, assigns, sets over and interest in, to and under the related Sale Assets, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets together with all of the other obligations of such Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens).otherwise conveys
Appears in 1 contract
Samples: Master Loan Sale Agreement (Barings Private Credit Corp)
Sale, Transfer and Assignment. (a) On the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase purchase set forth in Article III), on each Purchase Date, with respect to items of Collateral conveyed by the applicable Seller hereunder, the Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases Purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such the Seller (including all obligations of the Seller as lender to fund any Revolving Collateral Obligation or Delayed Drawdown Loan conveyed by the Seller to Buyer hereunder which obligations Buyer hereby assumes) in the property identified in clauses (ii)-(v) through (iii) below, whether constituting below and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, softwareaccessions, supporting obligations, accessions or proceeds and other property consisting of, arising out of, or related to any of such Seller, including the following (in each case excluding any the Excluded Amounts and Retained InterestAmounts) (collectively, the “Sale AssetsCollateral”):
(i) the Receivables identified by such Seller as of any Purchase Date which are Collateral Obligations listed on Schedule I the Loan List on the date hereof and any additional Collateral Obligations included on the Loan List from time to time following the applicable Sale Assignmentdate hereof pursuant to this Agreement, together with in each case, including all monies due or due, to become due or paid in payment under respect of such Receivables Collateral Obligations on and after the applicable related Purchase Date, including, including but not limited toto all Collections and other recoveries thereon, all Collectionsin each case as they arise after the related Purchase Date;
(ii) all Related Security Liens with respect to the Receivables Collateral Obligations referred to in clause (i) above; and;
(iii) all Underlying Instruments with respect to the Collateral Obligations referred to in clause (i) above;
(iv) all collateral security granted under any Underlying Instruments; and
(v) all income and Proceeds proceeds of the foregoing.
(b) Either the Sellers, on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice In addition to the non-terminating party (i.e.rights of the Buyer to acquire Collateral Obligations from the Seller, the Sellers or Buyer may fund directly any Collateral Obligation directly as a primary lender at the Buyerorigination thereof (each such Collateral Obligation, as the case may be) not less than 30 days prior to the Termination Effective Datea “Buyer Originated Loan”).
(c) The applicable Seller shall, on or prior to From and after each Purchase DateDate following the date hereof, execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) additional Collateral Obligations included in the form of Exhibit A heretosupplemented Loan List shall be deemed to be Collateral hereunder.
(d) On any Purchase Date, with respect to the Collateral to be acquired by the Buyer on that date, the Seller shall be deemed to, and hereby does, reaffirm and certify to the Buyer (and on any Purchase Date, the Collateral Agent, on behalf of the Secured Parties, and the Administrative Agent), as of such Purchase Date that each of the representations and warranties in Section 4.02 is true and correct in all material respects as of such Purchase Date.
(e) Except as specifically provided in this Agreement, the sale and purchase of Sale Assets Collateral under this Agreement shall be without recourse to the SellersSeller; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties warranties, covenants and covenants indemnities made by such the Seller pursuant to the terms of this Agreement.
(e) The Buyer, all of which obligations are limited so as not to constitute recourse to the Administrative Agent, each Lender, each Guarantor, Seller for the Backup Servicer and the Collateral Custodian shall not have any obligation or liability to any Obligor (including any obligation to perform any credit risk of the obligations of the Sellers (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer or the Collateral Custodian, and any such assumption is expressly disclaimedObligors.
(f) In connection with each Purchase of Sale Assets hereunder Collateral that occurs on or after the Warehouse Closing Date as contemplated by this Agreement, the Buyer hereby directs the Seller to, and the Seller agrees that it will deliver in accordance with the Credit Agreement, or cause to be delivered in accordance with the Credit Agreement (other than on behalf of the initial PurchaseBorrower), the applicable Seller shall have delivered the Required Receivable File to the Collateral CustodianAgent, no later than 2:00 p.m. each Collateral Obligation being transferred to the Buyer on such Purchase Date in accordance with the applicable provisions of the Credit Agreement. On the Warehouse Closing Date and each Purchase Date thereafter, each item of Collateral (I) two (2) Business Days including, on the Warehouse Closing Date, each item of Collateral Purchased prior to the related Funding Date Warehouse Closing Date) shall be delivered to the Collateral Agent by:
(i) with respect to Receivables acquired from “Sellers” such of the Collateral as constitutes an instrument, tangible chattel paper, a negotiable document, or money, causing the Collateral Agent (as or the Securities Intermediary on its behalf) to take possession of such term is defined instrument indorsed to the Collateral Agent or in blank, or such money, negotiable document, or tangible chattel paper, in the Credit Agreement) State of Receivables included in the Sale Assets on a prior Purchase Date Wisconsin separate and (II) five (5) Business Days prior to the related Purchase Date with respect to apart from all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be property held by the Collateral Custodian Agent;
(ii) with respect to such of the Collateral as constitutes a certificated security in escrow until bearer form, causing the Collateral Agent (or the Securities Intermediary on its behalf) to take possession of the related security certificate in the State of Wisconsin;
(iii) with respect to such of the Collateral as constitutes a certificated security in registered form, causing the Collateral Agent (or the Securities Intermediary on its behalf) to take possession of the related security certificate in the State of Wisconsin, indorsed to the Collateral Agent or in blank by an effective indorsement, or registered in the name of the Collateral Agent, upon original issue or registration of transfer by the issuer of such certificated security;
(iv) with respect to such of the Collateral as constitutes an uncertificated security, causing the issuer of such uncertificated security to register the Collateral Agent (or the Securities Intermediary on its behalf) or its nominee for the account of the Collateral Agent (or the Securities Intermediary on its behalf) as the registered owner of such uncertificated security;
(v) with respect to such of the Collateral as constitutes a security entitlement, causing the Securities Intermediary to indicate by book entry that the financial asset relating to such security entitlement has been credited to the Custodial Account;
(vi) with respect to such of the Collateral as constitutes a deposit account, causing such deposit account to be established and maintained in the name of the Collateral Agent or the Securities Intermediary, as applicable, by a bank the jurisdiction of which for purposes of the UCC is the State of New York; and
(vii) taking such additional or alternative procedures as may hereafter become appropriate to grant a first priority, perfected security interest in such items of the Collateral to the Collateral Agent, consistent with applicable law or regulations. If any item of Collateral is a financial asset issued by an issuer that is not the United States of America, an agency or instrumentality thereof, or some other United States person or entity, and if such item cannot be delivered as set forth above, such item may be delivered by the Collateral Agent holding such item in an account created and maintained in the name of the Collateral Agent with a banking or securities institution or a clearing agency or system located outside the United States such that the Collateral Agent holds a first priority, perfected security interest in such item of Collateral.
(g) The Seller shall take such action requested by the Buyer or the Administrative Agent, from time to time hereafter, that may be necessary or appropriate to ensure that the Buyer has an enforceable ownership interest and on and after the Warehouse Closing Date, its assigns under the Credit Agreement have an enforceable and perfected security interest in the Collateral Purchased by the Buyer as contemplated by this Agreement.
(h) In connection with the Purchase by the Buyer of the Collateral as contemplated by this Agreement, the Seller further agrees that it will, at its own expense, indicate clearly and unambiguously in its computer files and its financial statements, on or prior to each Purchase Date, that such Collateral has been Purchased by the Buyer in accordance with this Agreement.
(i) The Seller further agrees to deliver to the Buyer on or before each Purchase Date a computer file containing a true, complete and correct Loan List (which shall occur on contain the related Principal Balance, outstanding principal balance and Obligor name for each Collateral Obligation) as of the related Purchase Date. Such file or list shall be marked as Schedule I to this Agreement, shall be delivered to the Buyer as confidential and proprietary, and is hereby incorporated into and made a part of this Agreement as such Schedule I may be supplemented and amended from time to time.
(gj) It is the intention of the parties hereto that the conveyances conveyance of all right, title and interest of the applicable Seller in and to any Sale Assets the Collateral to the Buyer as provided in this Section 2.1 2.01 shall constitute an absolute transfers sale, conveyance and transfer conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Assets Collateral shall not be part of the Seller’s bankruptcy estate of such Seller in the event of an Insolvency Event any bankruptcy or insolvency proceedings with respect to such the Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables Collateral Obligations and the other Sale Assets Collateral to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any the conveyance provided for in this Section 2.1 2.01 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”)security, then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a duly perfected, first priority “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, in and to and under the related Sale AssetsCollateral, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets the Collateral together with all of the other obligations of such the Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Lawapplicable law, which rights and remedies shall be cumulative. In connection herewithThe Seller authorizes the Buyer, the Administrative Agent and the Collateral Agent on behalf of the Secured Parties to file UCC financing statements naming the Seller as “debtor”, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for as “assignor secured party” and the Collateral Agent as “assignee secured party”, or similar applicable designations, and describing the Collateral, in each jurisdiction that the Buyer deems necessary in order to have a perfected protect the security interest interests in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to Collateral granted under this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens)Section 2.01.
Appears in 1 contract
Samples: Master Loan Sale and Contribution Agreement (AB Private Credit Investors Corp)
Sale, Transfer and Assignment. (a) On Transfer from the Seller to the Buyer on the Closing Date. Subject to and upon the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase purchase set forth in Article III), on the Closing Date (or, in the case of each Purchase DateClosing Date Participation, the applicable Elevation Date), the Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, Buyer and the Buyer hereby purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such the Seller (including all obligations of the Seller as lender to fund any Revolving Collateral Obligation or Delayed Drawdown Collateral Obligation conveyed by the Seller to the Buyer hereunder which obligations the Buyer hereby assumes) in the property identified in clauses (ii)-(v) through (iii) below, whether constituting below and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, softwareaccessions, supporting obligations, accessions or proceeds and other property consisting of, arising out of, or related to any of such Seller, including the following (in each case excluding any the Excluded Amounts and Retained InterestAmounts) (collectively, the “Sale AssetsCollateral”):
(i) the Receivables identified by such Seller as of any Purchase Date which are Collateral Obligations listed on Schedule I each Loan List delivered on the Closing Date by the Seller to the applicable Sale Assignment, together with Buyer (as set forth on Schedule 1) and all monies due or due, to become due or paid in payment under respect of such Receivables Collateral Obligations on and after the applicable Purchase Closing Date, including, including but not limited toto all collections on such Collateral Obligations and other recoveries thereon, all Collectionsin each case as they arise after the Closing Date;
(ii) all Related Security Liens with respect to the Receivables Collateral Obligations referred to in clause (i) above; and;
(iii) all Related Contracts with respect to the Collateral Obligations referred to in clause (i) above;
(iv) all collateral security granted under any Related Contracts; and
(v) all income and Proceeds proceeds of the foregoing.
(b) Either the Sellers, on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice to the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Date.
(c) The applicable Seller shall, on or prior to each Purchase Date, execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) in the form of Exhibit A hereto.
(d) Except as specifically provided in this Agreement, the sale and purchase of Sale Assets under this Agreement shall be without recourse to the Sellers; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties and covenants made by such Seller pursuant to the terms of this Agreement.
(e) The Buyer, the Administrative Agent, each Lender, each Guarantor, the Backup Servicer and the Collateral Custodian shall not have any obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Sellers (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer or the Collateral Custodian, and any such assumption is expressly disclaimed.
(f) In connection with each Purchase of Sale Assets hereunder (other than the initial Purchase), the applicable Seller shall have delivered the Required Receivable File to the Collateral Custodian, no later than 2:00 p.m. (I) two (2) Business Days prior to the related Funding Date with respect to Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables included in the Sale Assets on a prior Purchase Date and (II) five (5) Business Days prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be held by the Collateral Custodian in escrow until such Purchase shall occur on the related Purchase Date.
(g) It is the intention of the parties hereto that the conveyances of all right, title and interest of the applicable Seller in and to any Sale Assets to the Buyer as provided in this Section 2.1 shall constitute absolute transfers conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Assets shall not be part of the bankruptcy estate of such Seller in the event of an Insolvency Event with respect to such Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables and the other Sale Assets to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any conveyance provided for in this Section 2.1 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”), then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, to and under the related Sale Assets, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets together with all of the other obligations of such Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens).
Appears in 1 contract
Samples: Master Loan Sale Agreement (Barings Private Credit Corp)
Sale, Transfer and Assignment. (a) On the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase set forth in Article III), on each Purchase Date, the applicable Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases and takes from such the Seller, all right, title and interest of such the Seller in the property identified in clauses (i) through (iii) below, whether constituting accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, software, supporting obligations, accessions or other property of such the Seller, including the following (in each case excluding any Excluded Amounts and Retained Interest) (collectively, the “Sale Assets”):
(i) the Receivables Loans identified by such the Seller as of any Purchase Date which are listed on Schedule I hereto or to the applicable Sale Assignment, together with all monies due or to become due in payment under such Receivables Loans on and after the applicable Purchase Date, including, but not limited to, all Collections;
(ii) all Eligible Assets and other Related Security with respect to the Receivables Loans referred to in clause (i) above; and
(iii) all income and Proceeds of the foregoing.
(b) Either the Sellers, on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice to the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Date.
(c) The applicable Seller shall, on or prior to each Purchase Date, execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) in the form of Exhibit A hereto.
(c) On or before any Purchase Date with respect to the Sale Assets to be acquired by the Buyer on that date, the Seller shall provide the Buyer with an Officer’s Certificate, in the form of Exhibit B hereto, signed by a Responsible Officer certifying, as of such Purchase Date, to the truth of the representations and warranties set forth in Sections 4.1 and 4.2.
(d) Except as specifically provided in this Agreement and the Credit Agreement, the sale and purchase of Sale Assets under this Agreement shall be without recourse to the SellersSeller; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties warranties, covenants and covenants indemnities made by such the Seller pursuant to the terms of this Agreement.
(e) The Buyer, the Administrative Agent, each Lender, each Guarantor, the Backup Servicer Servicer, the Trustee and the Collateral Custodian Collection Account Bank shall not have any obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Sellers Seller (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer Servicer, the Trustee or the Collateral CustodianCollection Account Bank, and any such assumption is expressly disclaimed.
(f) In connection with each Purchase of Sale Assets hereunder (other than the initial Purchase)hereunder, the applicable Seller shall have delivered the Required Receivable Loan File to the Collateral CustodianTrustee, no later than 2:00 p.m. (I) 2:00 p.m. two (2) Business Days prior to the related Funding Date with respect to Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables included in the Sale Assets on a prior Purchase Date and (II) five (5) Business Days prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables additional Loans not previously included in the Sale AssetsAssets on a prior Purchase Date (i.e., the Buyer has not previously financed such Loans on a prior Purchase Date) and (II) 6:30 p.m. one (1) Business Day prior to the related Purchase Date with respect to Loans included in the Sale Assets on a prior Purchase Date. The Required Receivable Loan Files shall be held by the Collateral Custodian Trustee in escrow until such Purchase shall occur on the related Purchase Date; provided that with respect to any Loan closed in escrow, the Seller shall deliver to the Administrative Agent a certificate (in the form of Exhibit M to the Credit Agreement or such other form as the Administrative Agent may agree) with respect to such Loan on or prior to the related Purchase Date; and provided further, that each related set of Required Loan Files with respect to a Loan closed in escrow shall be in the possession of the Trustee within three Business Days after the related Purchase Date.
(g) In connection with the transfers contemplated by this Agreement, the Seller hereby grants to each of the Buyer, the Administrative Agent, the Servicer, the Backup Servicer and any other Successor Servicer a non–exclusive license to use on a “view-only” basis, without royalty or payment of any kind except payments required to be made by the Seller, all software used by the Seller to account for the Sale Assets, to the extent necessary to administer the Sale Assets, whether such software is owned by the Seller or is owned by others and used by the Seller under license agreements with respect thereto; provided that should the consent of any licensor of such software be required for the grant of the “view right” or any further license described herein to be effective or for the Seller to assign such “view right” license to the Buyer, the Administrative Agent, the Servicer, the Backup Servicer or any other Successor Servicer, the Seller hereby agrees that upon the request of the Buyer, the Administrative Agent, the Servicer, the Backup Servicer or any other Successor Servicer, the Seller will use its good faith efforts to obtain the consent of such third–party licensor. The Seller (i) shall take such action requested by the Buyer or the Administrative Agent from time to time hereafter that may be necessary or appropriate to ensure that the Buyer and its assigns under the Credit Agreement have an enforceable ownership or security interest in the Sale Assets purchased by the Buyer as contemplated by this Agreement, and (ii) shall use its best efforts to ensure that each of the Buyer, the Administrative Agent and the Servicer (or the Backup Servicer and any Successor Servicer) has an enforceable “view only” right (whether by license or sublicense or otherwise) to use all of the computer software used to account for the Sale Assets and/or to recreate the related Servicing Files.
(h) In connection with the purchases by the Buyer of the Sale Assets as contemplated by this Agreement, the Seller further agrees that it will, at its own expense, indicate clearly and unambiguously in its computer files on or prior to each Purchase Date, and in the footnotes to its financial statements, that such Sale Assets have been purchased by the Buyer in accordance with this Agreement.
(i) It is the intention of the parties hereto that the conveyances of all right, title and interest of the applicable Seller in and to any Sale Assets to the Buyer as provided in this Section 2.1 shall constitute absolute transfers conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Assets shall not be part of the bankruptcy estate of such the Seller in the event of an Insolvency Event with respect to such the Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables Loans and the other Sale Assets to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any conveyance provided for in this Section 2.1 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”), then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, to and under the related Sale Assets, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets together with all of the other obligations of such the Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such the Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such the Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens).
Appears in 1 contract
Samples: Purchase and Contribution Agreement (NewStar Financial, Inc.)
Sale, Transfer and Assignment. (a) On Transfer from the Seller to the Buyer on the Closing Date. Subject to and upon the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase purchase set forth in Article III), on the Closing Date (or, in the case of each Purchase DateClosing Date Participation Interest, the applicable Elevation Date), the Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, Buyer and the Buyer hereby purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such the Seller (including all obligations of the Seller as lender to fund any Revolving Collateral Obligation or Delayed Drawdown Collateral Obligation conveyed by the Seller to the Buyer hereunder which obligations the Buyer hereby assumes) in the property identified in clauses (ii)-(v) through (iiiof this Section 2.01(a) below, whether constituting and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, softwareaccessions, supporting obligations, accessions or proceeds and other property consisting of, arising out of, or related to any of such Seller, including the following (in each case excluding any the Excluded Amounts and Retained InterestAmounts) (collectively, together with any of the following relating to any Collateral Obligation conveyed pursuant to Section 2.01(b) below, the “Sale AssetsCollateral”):
(i) the Receivables identified by such Seller as of Collateral Obligations (including the Closing Date Participation Interests and any Purchase Date which are Income Collections thereon) listed on Schedule I the Loan List delivered on the Closing Date by the Seller to the applicable Sale AssignmentBuyer (as set forth on Schedule 1), together with and all monies due or due, to become due or paid in payment under respect of such Receivables Collateral Obligations on and after the applicable related Purchase Date, including, including but not limited toto all collections on such Collateral Obligations and other recoveries thereon, all Collectionsin each case as they arise after the related Purchase Date;
(ii) all Related Security Liens with respect to the Receivables Collateral Obligations referred to in clause (i) above; and;
(iii) all Related Contracts with respect to the Collateral Obligations referred to in clause (i) above;
(iv) all collateral security granted under any Related Contracts; and
(v) all income and Proceeds proceeds of the foregoing.
(b) Either the Sellers, on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice to the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Date.
(c) The applicable Seller shall, on or prior to each Purchase Date, execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) in the form of Exhibit A hereto.
(d) Except as specifically provided in this Agreement, the sale and purchase of Sale Assets under this Agreement shall be without recourse to the Sellers; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties and covenants made by such Seller pursuant to the terms of this Agreement.
(e) The Buyer, the Administrative Agent, each Lender, each Guarantor, the Backup Servicer and the Collateral Custodian shall not have any obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Sellers (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer or the Collateral Custodian, and any such assumption is expressly disclaimed.
(f) In connection with each Purchase of Sale Assets hereunder (other than the initial Purchase), the applicable Seller shall have delivered the Required Receivable File to the Collateral Custodian, no later than 2:00 p.m. (I) two (2) Business Days prior to the related Funding Date with respect to Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables included in the Sale Assets on a prior Purchase Date and (II) five (5) Business Days prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be held by the Collateral Custodian in escrow until such Purchase shall occur on the related Purchase Date.
(g) It is the intention of the parties hereto that the conveyances of all right, title and interest of the applicable Seller in and to any Sale Assets to the Buyer as provided in this Section 2.1 shall constitute absolute transfers conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Assets shall not be part of the bankruptcy estate of such Seller in the event of an Insolvency Event with respect to such Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables and the other Sale Assets to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any conveyance provided for in this Section 2.1 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”), then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, to and under the related Sale Assets, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets together with all of the other obligations of such Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens).
Appears in 1 contract
Samples: Master Loan Sale Agreement (PennantPark Floating Rate Capital Ltd.)
Sale, Transfer and Assignment. (a) On the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase set forth in Article III), on each Purchase Date, the applicable Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such the Seller in the property identified in clauses (i) through (iii) belowin, whether constituting to and under all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, chattel paper, documents, money, letters of credit, advices of credit, deposit accounts, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, software, supporting obligations, accessions or goods and other property consisting of, arising from or related to any of such Seller, including the following (in each case excluding any Excluded Amounts and Retained Interest) property (collectively, the “Sale AssetsPurchased Collateral”):
(i) the Receivables Assets identified by such the Seller as of the initial Cut–Off Date which are listed on Schedule I hereto, and the Assets identified by the Seller as of any Purchase additional Cut–Off Date which are listed on Schedule I to the applicable Sale Assignment, together with all monies due or to become due in payment under of such Receivables Loans on and after the applicable Purchase related Cut–Off Date, including, but not limited to, all Collectionsexcluding any Excluded Amounts and any Retained Interest;
(ii) all Related Security with respect to the Receivables Loans referred to in clause (i) above; and
(iii) all income and Proceeds of the foregoing.
(b) Either the Sellers, on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice to the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Date.
(c) The applicable Seller shall, shall on or prior to each any Purchase Date, Date after the Closing Date execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) from the Seller to the Buyer in the form of Exhibit A hereto. From and after such Purchase Date, the Purchased Collateral listed on such assignment shall be deemed to be Purchased Collateral hereunder.
(c) On or before any Purchase Date with respect to the Purchased Collateral to be acquired by the Buyer on that date, the Seller shall provide the Buyer with an Officer’s Certificate, in the form of Exhibit B hereto, signed by a duly authorized Responsible Officer certifying, as of such Purchase Date, to each of the items in Section 4.2, in the form of Exhibit B hereto.
(d) Except as specifically provided in this Agreement, the sale and purchase of Sale Assets Purchased Collateral under this Agreement shall be without recourse to the SellersSeller; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties warranties, covenants and covenants indemnities made by such Seller pursuant to the terms of this Agreement, all of which obligations are limited so as not to constitute recourse to the Seller for the credit risk of the Obligors.
(e) The Buyer, the Administrative Agent, each LenderPurchaser, each Guarantorthe other Secured Parties, the Backup Servicer and the Collateral Custodian shall not have any obligation or liability to any Obligor or client of Seller (including any obligation to perform any of the obligations of the Sellers Seller (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any Lenderthe Purchasers, any Guarantorthe Secured Parties, the Backup Servicer Servicer, or the Collateral Custodian, and any such assumption is expressly disclaimed.
(f) In connection with each Purchase of Sale Assets hereunder (other than the initial Purchase)Purchased Collateral hereunder, the applicable Seller shall have delivered the Required Receivable File deliver to the Collateral Custodian, no later than 2:00 p.m. Custodian (IA) two (2) Business Days the Required Asset Documents with respect thereto on or prior to the related Funding initial Purchase Date with respect to Receivables acquired from “Sellers” (as such term is defined except for any UCCs, which shall be in the Credit Agreementpossession of the Collateral Custodian within two Business Days of the initial Purchase Date) as to any Existing Assets, and (B) the duly executed original promissory note, if any, and the duly executed faxed copies of Receivables the other documents included in the Sale Assets Required Asset Documents (the “Faxed Documents”) on a prior Purchase Date and (II) five (5) Business Days or prior to the related Purchase Date with respect (and if prior to all other Receivables acquired from “Sellers” (as the related Purchase Date, any such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files promissory note and Faxed Documents shall be held by the Collateral Custodian on behalf of the Purchasers in escrow until such Purchase shall occur on the related Purchase Date), and the duly executed original copies of the Faxed Documents (including any UCCs) within two Business Days of the related Purchase Date as to any Additional Assets. In connection with such transfer, the Seller hereby grants to each of the Buyer, the Administrative Agent and the Servicer an irrevocable, non–exclusive license to use, without royalty or payment of any kind, all software used by the Seller to account for the Purchased Collateral, to the extent necessary to administer the Purchased Collateral, whether such software is owned by the Seller or is owned by others and used by the Seller under license agreements with respect thereto; provided that should the consent of any licensor of such software be required for the grant of the license described herein to be effective, the Seller hereby agrees that upon the request of the Buyer or the Administrative Agent, the Seller will use its reasonable efforts to obtain the consent of such third–party licensor. The license granted hereby shall be irrevocable until the Collection Date and shall terminate on the date this Agreement terminates in accordance with its terms. The Seller (i) shall take such action requested by the Buyer, the Administrative Agent, from time to time hereafter, that may be necessary or appropriate to ensure that the Buyer and its assigns under the Sale and Servicing Agreement have an enforceable ownership interest in the Asset Files purchased from the Seller hereunder, and (ii) shall use its reasonable efforts to ensure that each of the Buyer, the Administrative Agent, and the Servicer has an enforceable right (whether by license or sublicense or otherwise) to use all of the computer software used to account for the Purchased Collateral and/or to recreate such Asset Files.
(g) In connection with the sale of the Purchased Collateral, the Seller further agrees that it will, at its own expense, indicate clearly and unambiguously in its computer files and its financial statements, on or prior to each Purchase Date, that such Purchased Collateral has been sold to the Buyer pursuant to this Agreement.
(h) The Seller further agrees to deliver to the Buyer on or before each Purchase Date a computer file containing a true, complete and correct list of all Assets, identified by account number and Outstanding Asset Balance as of the related Cut–Off Date. Such file or list shall be marked as Schedule I to this Agreement, shall be delivered to the Buyer as confidential and proprietary, and is hereby incorporated into and made a part of this Agreement as such Schedule I may be supplemented and amended from time to time.
(i) It is the intention of the parties hereto that the conveyances conveyance of all the Seller’s right, title and interest of the applicable Seller in and to any Sale Assets the Purchased Collateral by the Seller to the Buyer as provided in this Section 2.1 shall constitute an absolute transfers transfer conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Assets Purchased Collateral shall not be part of the Seller’s bankruptcy estate of such Seller in the event of an Insolvency Event with respect to such the Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables Assets and the other Sale Assets Purchased Collateral by the Seller to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any the conveyance provided for in this Section 2.1 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”)security, then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a duly perfected, first priority “security interest” within the meaning of Article 9 of the UCC in all of its the Seller’s right, title and interest in, in and to and under the related Sale AssetsPurchased Collateral, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets the Purchased Collateral together with all of the other obligations of such the Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens).
Appears in 1 contract
Samples: Sale and Contribution Agreement (Capitalsource Inc)
Sale, Transfer and Assignment. (a) On Transfer from the Seller to the Buyer on the 2024 Closing Date. Subject to and upon the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase purchase set forth in Article III), on each Purchase the 2024 Closing Date, the applicable Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, Buyer and the Buyer hereby purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such the Seller (including all obligations of the Seller as lender to fund any Revolving Collateral Obligation or Delayed Drawdown Collateral Obligation conveyed by the Seller to the Buyer hereunder which obligations the Buyer hereby assumes) in the property identified in clauses (ii)-(v) through (iii) below, whether constituting below and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, softwareaccessions, supporting obligations, accessions or proceeds and other property consisting of, arising out of, or related to any of such Seller, including the following (in each case excluding any the Excluded Amounts and Retained InterestAmounts) (collectively, together with any of the following relating to any Collateral Obligation conveyed pursuant to Section 2.01(b) below, the “Sale AssetsCollateral”):
(i) the Receivables identified by such Seller as of any Purchase Date which are Collateral Obligations listed on Schedule I each Loan List delivered on the 2024 Closing Date by the Seller to the applicable Sale Assignment, together with Buyer (as set forth on Schedule 1) and all monies due or due, to become due or paid in payment under respect of such Receivables Collateral Obligations on and after the applicable related Purchase Date, including, including but not limited toto all collections on such Collateral Obligations and other recoveries thereon, all Collectionsin each case as they arise after the related Purchase Date;
(ii) all Related Security Liens with respect to the Receivables Collateral Obligations referred to in clause (i) above;
(iii) all Related Contracts with respect to the Collateral Obligations referred to in clause (i) above; BUSINESS.31767223.5
(iv) all collateral security granted under any Related Contracts; and
(iiiv) all income and Proceeds proceeds of the foregoing.
(b) Either Transfer from the SellersSeller to the Buyer on each Purchase Date after the 2024 Closing Date. Subject to and upon the terms and conditions set forth in this Agreement (including the conditions to purchase set forth in Article III), on each Purchase Date occurring after the one hand2024 Closing Date, or with respect to the items of Collateral conveyed on such Purchase Date by the Seller to the Buyer hereunder, the Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, on and the other handBuyer hereby purchases and takes from the Seller all right, may, in their respective sole discretion at title and interest (whether now owned or hereafter acquired or arising and wherever located) of the Seller (including all obligations of the Seller as lender to fund any time after March 30, 2009 terminate this Agreement Revolving Collateral Obligation or Delayed Drawdown Collateral Obligation conveyed by delivery of written notice the Seller to the non-terminating party (i.e., Buyer hereunder which obligations the Sellers or the Buyer, as the case may beBuyer hereby assumes) not less than 30 days prior to the Termination Effective Datein such Collateral.
(c) The applicable Seller shall, on or prior to From and after each Purchase Date, execute and deliver the Collateral listed on the relevant Loan List shall be deemed to the Buyer a certificate of assignment (the “Sale Assignment”) in the form of Exhibit A heretobe Collateral hereunder.
(d) On any Purchase Date with respect to the Collateral to be acquired by the Buyer on that date, the Seller shall be deemed to, and hereby does, certify to the Buyer and to the Collateral Trustee, on behalf of the Secured Parties, as of such Purchase Date, that each of the representations and warranties in Section 4.02 is true and correct in all material respects as of such Purchase Date.
(e) Except as specifically provided in this Agreement, the sale and purchase of Sale Assets Collateral under this Agreement shall be without recourse to the SellersSeller; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, representations and warranties and covenants made by such the Seller pursuant to the terms of this Agreement.
(e) The Buyer, all of which obligations are limited so as not to constitute recourse to the Administrative Agent, each Lender, each Guarantor, Seller for the Backup Servicer and the Collateral Custodian shall not have any obligation or liability to any Obligor (including any obligation to perform any credit risk of the obligations of the Sellers (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer or the Collateral Custodian, and any such assumption is expressly disclaimedObligors.
(f) In connection with each Purchase of Sale Assets hereunder Collateral from the Seller to the Buyer on and after the 2024 Closing Date as contemplated by this Agreement, the Buyer hereby directs the Seller to, and the Seller agrees that it will, Deliver in accordance with the Indenture, or cause to be Delivered in accordance with the Indenture (other than on behalf of the initial PurchaseBuyer), to the applicable Seller shall have delivered the Required Receivable File Custodian (with a copy to the Collateral CustodianTrustee), no later than 2:00 p.m. (I) two (2) Business Days prior each Collateral Obligation being transferred to the related Funding Buyer on such Purchase Date in accordance with respect the applicable provisions of the Indenture.
(g) The Seller shall take such action requested by the Buyer, from time to Receivables acquired from “Sellers” (as such term is defined time hereafter, that may be necessary or appropriate to ensure that the Buyer has an enforceable ownership interest and its assigns under the Indenture have an enforceable and perfected security interest in the Credit Collateral purchased by the Buyer as contemplated by this Agreement.
(h) In connection with the Purchase by the Buyer of Receivables included the Collateral as contemplated by this Agreement, the Seller agrees that it will, at its own expense, indicate clearly and unambiguously in the Sale Assets its computer files on a prior each Purchase Date that such Collateral has been purchased by the Buyer and (II) five (5) Business Days prior to the Seller agrees that it will indicate clearly and unambiguously on BUSINESS.31767223.5 and after the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as in its financial statements that such term Collateral is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be held owned by the Buyer and is not available to pay creditors of the Seller.
(i) The Seller agrees to deliver to the Buyer on or before each Purchase Date, as applicable, a computer file containing a true, complete and correct Loan List (which shall contain the related Principal Balance, outstanding principal balance, loan number and Obligor name for each Collateral Custodian in escrow until such Purchase shall occur on Obligation) as of the related Purchase Date. Such file or list shall be marked as Schedule 1 to this Agreement, shall be delivered to the Buyer, as confidential and proprietary, and is hereby incorporated into and made a part of this Agreement, as such Schedule 1 or Schedule I, as applicable, may be supplemented and amended from time to time. In addition, with respect to each Purchase Date occurring after the 2024 Closing Date, the Seller shall deliver to the Buyer an assignment of such Collateral Obligation substantially in the form of Exhibit A hereto.
(gj) [Reserved].
(k) [Reserved].
(l) It is the intention of the parties hereto that the conveyances conveyance of all right, title and interest of the applicable Seller in and to any Sale Assets the Collateral to the Buyer by the Seller as provided in this Section 2.1 shall 2.01 is intended and shall, in each and every case, constitute an absolute transfers sale, assignment, conveyance and transfer of ownership of such Collateral conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Assets Collateral shall not be part of the Seller’s bankruptcy estate of such Seller in the event of an Insolvency Event any bankruptcy or insolvency proceedings with respect to such the Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables Collateral Obligations and the other Sale Assets Collateral to the Buyer to secure a debt or other obligation of the applicable Seller. .
(m) If, however, notwithstanding the intention of the partiesparties set forth in Section 2.01(m), any conveyance of the conveyances provided for in this Section 2.1 is 2.01 by the Seller are determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”)to secure indebtedness, then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and UCC. With respect to the applicable Collateral related to Schedule 1 hereunder, (A) the Seller hereby grants to the Buyer a duly perfected, first priority “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, in and to and under the related Sale Assetssuch Collateral, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets together with all of Collateral, (B) the other obligations of such Seller hereunder. The Buyer Buyer, as assignee secured party, shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Lawapplicable law with respect thereto, which rights and remedies shall be cumulative. In connection herewith, and (C) the Seller authorizes the Buyer, and, so long as the Payment in Full Date has not occurred, the Collateral Trustee on behalf of the Secured Parties, to file UCC financing statements and amendments, as necessary, naming the Seller as “debtor” or “assignor secured party”, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for as “assignor secured party” or “assignee secured party” and the Collateral Trustee as “assignee secured party,” or similar applicable designations, describing such Collateral, in each jurisdiction that the Buyer deems necessary in order to have a perfected protect the security interest interests in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”Collateral granted under this Section 2.01(n). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens).-8- BUSINESS.31767223.5
Appears in 1 contract
Samples: Master Loan Sale Agreement (Barings Private Credit Corp)
Sale, Transfer and Assignment. (a) On the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase purchase set forth in Article III), on each Purchase Date, the applicable Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases Purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such the Seller (including all obligations of the Seller as lender to fund any Revolving Collateral Obligation or Delayed Drawdown Collateral Obligation conveyed by the Seller to Buyer hereunder which obligations Buyer hereby assumes) in the property identified in clauses (ii)–(v) through (iii) below, whether constituting below and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, softwareaccessions, supporting obligations, accessions or proceeds and other property consisting of, arising out of, or related to any of such Seller, including the following (in each case excluding any the Excluded Amounts and Retained InterestAmounts) (collectively, the “Sale AssetsCollateral”):
(i) the Receivables identified by such Seller as of any Purchase Date which are Collateral Obligations listed on Schedule I each Collateral Obligation List delivered by the Seller to the applicable Sale AssignmentBuyer from time to time pursuant to this Agreement, together with all payments paid in respect thereof, all monies due or due, to become due or paid in payment under respect of such Receivables Collateral Obligations on and after the applicable related Purchase Date (including all Sale Proceeds and other recoveries thereon, in each case as they arise after the related Purchase Date, including, but not limited to, all Collections) and any related Assets;
(ii) all Related Security Liens with respect to the Receivables Collateral Obligations referred to in clause (i) above; and;
(iii) all Related Contracts with respect to the Collateral Obligations referred to in clause (i) above;
(iv) all collateral security granted under any Related Contracts; and
(v) all income and Proceeds proceeds of the foregoing. For the avoidance of doubt, and without limiting the foregoing, the term “Collateral” shall, for all purposes of this Agreement, be deemed to include any Collateral Obligation settled directly with the Buyer from a third party in a transaction intermediated, arranged and underwritten by the Seller or any Collateral Obligation acquired by the Buyer in a transaction in which the Seller passes its equitable title to the Buyer as designee of the Seller under the instruments of conveyance relating to the applicable Collateral Obligation.
(b) Either From and after each Purchase Date, the Sellers, Collateral listed on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice Collateral Obligation List shall be deemed to the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Datebe Collateral hereunder.
(c) The applicable On any Purchase Date with respect to the Collateral to be acquired by the Buyer on that date, the Seller shallshall be deemed to, and hereby does, reaffirm and certify to the Buyer, the Collateral Agent, on or prior to each behalf of the Secured Parties, the Loan Agent and the Trustee, as of such Purchase Date, execute that each of the representations and deliver to the Buyer a certificate warranties in Section 4.02 is true and correct as of assignment (the “Sale Assignment”) in the form of Exhibit A heretosuch Purchase Date.
(d) Except as specifically provided in this Agreement, the sale and purchase of Sale Assets Collateral under this Agreement shall be without recourse to the Sellers; howeverSeller, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties warranties, covenants and covenants indemnities made by such the Seller pursuant to the terms of this Agreement, all of which obligations are limited so as not to constitute recourse to the Seller for the credit risk of the Obligors.
(e) The BuyerIn connection with each Purchase of Collateral as contemplated by this Agreement, the Administrative Buyer hereby directs the Seller to, and the Seller agrees that it will deliver in accordance with the Indenture, or cause to be delivered in accordance with the Indenture (on behalf of the Buyer), to the Custodian, as agent and custodian for the Collateral Agent, each LenderCollateral Obligation being transferred to the Buyer on such Purchase Date in accordance with the applicable provisions of the Indenture. Each item of Collateral shall be delivered to the Custodian in accordance with the definition of “Deliver” under the Indenture. The Seller represents and warrants that each Collateral Obligation purchased prior to the date hereof has been delivered in accordance with the requirements of Section 2.01 of the Amended and Restated Loan Sale and Contribution Agreement, each Guarantordated as of October 16, 2014, between the Seller and FS Senior Funding LLC. The Seller shall record and file (or cause to be recorded or filed) on or before the related Purchase Date all financing statements, amendments and terminations statements, as required, and the Seller agrees to record and file (or cause to be recorded or filed) after the related Purchase Date all appropriate financing statements, continuation statements, and other amendments, meeting the requirements of applicable law in such manner and in such jurisdictions as are necessary to perfect and protect the interests of the Collateral Agent and the Secured Parties in the Collateral under the applicable Uniform Commercial Code against all creditors of and purchasers from the Seller. The Seller promptly shall deliver (or cause to be delivered) file-stamped copies of such financing statements, continuation statements, and amendments to the Collateral Agent, the Backup Servicer Trustee and the Collateral Custodian Loan Agent. The Seller shall not have any obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Sellers (including any obligation with respect to any other related agreements)). No also take such obligation or liability is intended to be assumed action requested by the Buyer, the Administrative Trustee or the Loan Agent, any Lenderfrom time to time hereafter, any Guarantor, that may be necessary or appropriate to ensure that the Backup Servicer or Buyer has an enforceable ownership interest and its assigns under the Indenture have an enforceable and perfected security interest in the Collateral Custodian, and any such assumption is expressly disclaimedPurchased by the Buyer as contemplated by this Agreement.
(f) In connection with the Purchase by the Buyer of the Collateral as contemplated by this Agreement, the Seller further agrees that it will, at its own expense, indicate clearly and unambiguously in its computer files and its financial statements, on or prior to each Purchase of Sale Assets hereunder (other than the initial Purchase)Date, the applicable Seller shall have delivered the Required Receivable File to the that such Collateral Custodian, no later than 2:00 p.m. (I) two (2) Business Days prior to the related Funding Date with respect to Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables included in the Sale Assets on a prior Purchase Date and (II) five (5) Business Days prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be held has been Purchased by the Collateral Custodian Buyer in escrow until such Purchase shall occur on the related Purchase Dateaccordance with this Agreement.
(g) It is The Seller further agrees to deliver to the intention Buyer on or before each Purchase Date a computer file containing a true, complete and correct Collateral Obligation List (which shall contain the related Principal Balance, outstanding principal balance, loan number and Obligor name for each Collateral Obligation) as of the parties hereto that the conveyances of all rightrelated Purchase Date. Such file or list shall be marked as Schedule I to this Agreement, title and interest of the applicable Seller in and to any Sale Assets shall be delivered to the Buyer as provided in this Section 2.1 shall constitute absolute transfers conveying good titleconfidential and proprietary, free and clear of any Lien (other than Permitted Liens) is hereby incorporated into and that the Sale Assets shall not be made a part of the bankruptcy estate of such Seller in the event of an Insolvency Event with respect to such Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables and the other Sale Assets to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any conveyance provided for in this Section 2.1 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”), then this Agreement shall also as such Schedule I may be deemed supplemented and amended from time to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, to and under the related Sale Assets, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets together with all of the other obligations of such Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens)time.
Appears in 1 contract
Samples: Master Transfer Agreement (Fifth Street Senior Floating Rate Corp.)
Sale, Transfer and Assignment. (a) On the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase purchase set forth in Article III), on each Purchase Transfer Date, the applicable Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases Purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such the Seller (including all obligations of the Seller as lender to fund any Delayed Funding Term Loan or Revolving Loan conveyed by the Seller to Buyer hereunder which obligations Buyer hereby assumes) in the property identified in clauses (ii)-(v) through (iii) below, whether constituting below and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, softwareaccessions, supporting obligations, accessions or proceeds and other property consisting of, arising out of, or related to any of such Seller, including the following (in each case above and below excluding any the Excluded Amounts and Retained InterestAmounts) (collectively, the “Sale Transferred Assets”):
(i) the Receivables identified by such Seller as of any Purchase Date which are Collateral Obligation listed on Schedule I each Collateral Obligation List delivered by the Seller to the applicable Sale Assignment, together Buyer with respect to such Transfer Date pursuant to this Agreement and all monies due or due, to become due or paid in payment under respect of such Receivables Collateral Obligations on and after the applicable Purchase related Transfer Date, including, including but not limited toto all Collections and other recoveries thereon, all Collectionsin each case as they arise after the related Transfer Date;
(ii) all Related Security Liens with respect to the Receivables Collateral Obligations referred to in clause (i) above (except to the extent such Liens are held in a capacity as an administrative agent or collateral agent);
(iii) all guaranties, indemnities and warranties, insurance policies, financing statements and other agreements or arrangements of whatever character from time to time supporting or securing payment of the Collateral Obligations referred to in clause (i) above (except to the extent such Liens are held in a capacity as an administrative agent or collateral agent);
(iv) all Related Documents with respect to the Collateral Obligations referred to in clause (i) above; and
(iiiv) all income and Proceeds proceeds of the foregoing. For the avoidance of doubt, and without limiting the foregoing, the term “Transferred Assets” shall, for all purposes of this Agreement, be deemed to include any Collateral Obligation funded directly by the Buyer that is an obligation with respect to which the Seller, either itself or through related entities (other than the Buyer), directly or indirectly, was involved in the original agreement which created such obligation, or any Collateral Obligation acquired by the Buyer as provided in Section 2.03(d).
(b) Either From and after each Transfer Date, the Sellers, Transferred Assets listed on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice relevant Collateral Obligation List shall be deemed to the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Datebe Transferred Assets hereunder.
(c) The applicable Seller shall, on or prior to each Purchase Date, execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) in the form of Exhibit A hereto.
(d) Except as specifically provided in this Agreement, the sale and purchase of Sale Transferred Assets under this Agreement shall be without recourse to the SellersSeller; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties warranties, covenants and covenants indemnities made by such the Seller pursuant to the terms of this Agreement, all of which obligations are limited so as not to constitute recourse to the Seller for the credit risk of the obligors with respect to such Transferred Assets. The representations and warranties of Seller with respect to the Transferred Assets do not address the creditworthiness of the obligor on such Transferred Assets or the risk of default or declines in credit quality with respect to such Transferred Assets after the related Transfer Date. The sale and purchase of any Transferred Asset hereunder does not constitute and is not intended to result in a creation or assumption by the Buyer or any assignee of the Buyer (including the Trustee for the benefit of the Secured Parties), of any obligation of the Seller or any other Person as administrative agent, collateral agent or paying agent under any Collateral Obligation.
(e) The Buyer, the Administrative Agent, each Lender, each Guarantor, the Backup Servicer and the Collateral Custodian shall not have any obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Sellers (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer or the Collateral Custodian, and any such assumption is expressly disclaimed.
(fd) In connection with each Purchase of Sale Transferred Assets hereunder (other than the initial Purchase)under and in accordance with this Agreement, the Buyer hereby directs the Seller to, and the Seller agrees that it will Deliver, or cause to be Delivered, to the Trustee, each Collateral Obligation and the Related Documents being transferred to the Buyer on such Transfer Date in accordance with and subject to the applicable provisions of the Indenture. The Seller shall take such action reasonably requested by the Buyer or the Trustee, from time to time hereafter, that may be necessary or appropriate to ensure that the Buyer has an enforceable ownership interest and its assigns under the Indenture have delivered an enforceable and perfected security interest in the Required Receivable File Transferred Assets Purchased by the Buyer as contemplated by this Agreement.
(e) In connection with each Purchase by the Buyer of the Transferred Assets as contemplated by this Agreement, the Seller further agrees that it will, at its own expense, indicate clearly and unambiguously in its computer files and its financial statements, on or prior to each Transfer Date, that such Transferred Assets have been Purchased by the Buyer in accordance with this Agreement.
(f) The Seller further agrees to deliver to the Buyer on or before each Transfer Date true, complete and correct Collateral CustodianObligation List (which shall contain the related outstanding principal balance, no later than 2:00 p.m. (Iloan number and obligor name for each Collateral Obligation) two (2) Business Days prior as of the related Transfer Date. Such file or list shall be marked as Schedule I to this Agreement, shall be delivered to the related Funding Date with respect to Receivables acquired from “Sellers” (Buyer as confidential and proprietary, and is hereby incorporated into and made a part of this Agreement as such term is defined in the Credit Agreement) of Receivables included in the Sale Assets on a prior Purchase Date Schedule I may be supplemented and (II) five (5) Business Days prior amended from time to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be held by the Collateral Custodian in escrow until such Purchase shall occur on the related Purchase Datetime.
(g) It is the intention of the parties hereto that the conveyances conveyance of all right, title and interest of the applicable Seller in and to any Sale the Transferred Assets by the Seller to the Buyer as provided in this Section 2.1 2.01 shall constitute an absolute transfers sale, conveyance and transfer conveying good title, free and clear of any Lien (other than (i) the security interest granted to the Buyer pursuant to this Agreement and (ii) Permitted Liens) and that the Sale Transferred Assets shall not be part of the Seller’s bankruptcy estate of such Seller in the event of an Insolvency Event a bankruptcy, insolvency, reorganization, liquidation or similar proceeding of the Seller (or in the event that a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed with respect to such the Seller). Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables Collateral Obligations and the other Sale Transferred Assets to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any the conveyance provided for in this Section 2.1 2.01 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”)security, then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a duly perfected, first priority “security interest” within the meaning of Article 9 of the UCC in all of its Seller’s right, title and interest in, in and to and under the related Sale Transferred Assets, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale the Transferred Assets together with all of the other obligations of such the Seller hereunder, and the Buyer hereby assigns all of its right, title and interest in such security interest to the Trustee, for the benefit of the Secured Parties. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens).
Appears in 1 contract
Samples: Sale and Contribution Agreement (FS Energy & Power Fund)
Sale, Transfer and Assignment. (a) On the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase set forth in Article III), on each the Purchase Date, the applicable Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases and takes from such the Seller, in its capacity as lender of record, all right, title and interest (whether now existing, owned or hereafter acquired or arising and wherever located) of such Seller the Seller, in the property identified in clauses (i) through (iii) below, whether constituting accounts, cash below and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, software, supporting obligations, accessions or other property consisting of, arising out of, or related to any of such Seller, including the following (in each case but excluding any such property constituting Excluded Amounts and Retained Interestthat are for the account of Seller) (collectively, the “Sale Transferred Assets”):
(i) the Receivables The Collateral Loans identified by such the Seller as and which are listed on the Loan List attached hereto, including for the avoidance of doubt any Purchase Date Participations of Collateral Loans which are listed on Schedule I II attached hereto (pending the effectiveness of the assignment thereof in accordance with Section 2.4) and any Substituted Collateral Loans transferred to the applicable Sale AssignmentBuyer in connection with a Warranty Event, together with all monies due or to become due in payment under of such Receivables Collateral Loans on and after the applicable Purchase Date, including, but not limited to, including all Collections;
(ii) all Underlying Loan Agreements, Underlying Notes and Related Security Documents (including, without limitation, any participation or assignment agreements or any similar agreements related thereto) with respect to the Receivables Collateral Loans (including for the avoidance of doubt any Participations) referred to in clause (i) above;
(iii) all Liens, property, guaranties, supporting obligations, insurance and other agreements or arrangements of whatever character from time to time supporting or securing payment of any of the foregoing; and
(iiiiv) all income and Proceeds of the foregoing. Without limiting the foregoing, the term “Transferred Assets” (i) shall, for all purposes of this Agreement, be deemed to include any Collateral Loan (including for the avoidance of doubt any Participation with respect thereto) acquired by the Buyer in a transaction in which the Buyer is the designee of the Seller under the instruments of conveyance relating to the applicable Collateral Loan (including for the avoidance of doubt any Participation with respect thereto), subject in each case to the terms of this Agreement (including the representations, warranties, covenants and indemnities of the Seller set forth herein) and (ii) shall include only the rights and obligations of the Seller in its capacity as lender of record and only with respect to the Collateral Loans described on the Loan List (and shall exclude any rights or obligations (i) as administrative agent for any Collateral Loan and (ii) as lender under any loan not included in the Loan List).
(b) Either The Seller shall be deemed to have certified, and hereby does certify, with respect to the Sellers, Transferred Assets to be purchased by the Buyer on the one handPurchase Date, or that its representations and warranties contained in Article IV are true and correct on and as of the Purchase Date. The Seller and the Buyer acknowledge that the representations and warranties of the Seller in Article IV will run to and be for the benefit of the Collateral Agent on behalf of the Secured Parties, and the Collateral Agent on behalf of the Secured Parties may enforce, directly without joinder of the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery repurchase obligations of written notice the Seller with respect to breaches of certain of the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Daterepresentations and warranties set forth herein.
(c) The applicable Seller shall, on or prior to each Purchase Date, execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) in the form of Exhibit A hereto.
(d) Except as specifically provided in this Agreement, the sale and purchase of Sale Transferred Assets under this Agreement shall be without recourse to the SellersSeller; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties warranties, covenants and covenants indemnities made by such the Seller pursuant to the terms of this Agreement.
(ed) The Except for future funding obligations under any Transferred Assets, the Buyer, the Collateral Agent, the Administrative Agent, each Lender, each Guarantor, the Backup Servicer Lender and the Collateral Custodian other Secured Parties shall not have any obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Sellers Seller (including any obligation with respect to any other related agreements)). No Except as set forth in the immediately preceding sentence, no such obligation or liability is intended to be assumed by the Buyer, the Collateral Agent, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer Lenders or the Collateral CustodianSecured Parties, and any such assumption is expressly disclaimed.
(e) In connection with the Purchase of Transferred Assets hereunder, the Seller shall deliver, or cause to be delivered, to the Custodian no later than 12:00 noon on the Purchase Date (i) the related Document Checklist and (ii) each of the other Required Loan Documents. Promptly after the Purchase of Transferred Assets hereunder, the Seller shall deliver, or cause to be delivered, to the Collateral Agent with a copy to the Custodian and the Administrative Agent a properly completed Trade Confirmation, if any, on which the Custodian may conclusively rely without further inquiry or investigation, and shall deliver to the Custodian the Loan Files for the Transferred Assets.
(f) In connection with the transfers contemplated by this Agreement, the Seller hereby grants to each Purchase of Sale Assets hereunder the Buyer, the Collateral Agent and the Collateral Manager an irrevocable, non–exclusive license to use, without royalty or payment of any kind, all software used by the Seller to account for the Transferred Assets, to the extent necessary to allow the Buyer, the Collateral Agent or the Collateral Manager to administer the Transferred Assets, whether such software is owned by the Seller or is owned by others and used by the Seller under license agreements with respect thereto; provided that should the consent of any licensor of such software be required for the grant of the license described herein, to be effective, the Seller hereby agrees that upon the request of the Buyer or the Collateral Agent, the Seller will use its best reasonable efforts to obtain the consent of such third–party licensor either before the First Amendment Effective Date or as soon as possible thereafter. The license granted hereby shall be irrevocable until the Final Maturity Date and shall terminate on the date this Agreement terminates in accordance with its terms. The Seller shall take such action requested by the Buyer or the Collateral Agent, from time to time hereafter, that may be necessary or appropriate to ensure that the Buyer has an enforceable ownership interest and that Collateral Agent (other than the initial Purchaseand its assigns), for the applicable Seller shall benefit of the Secured Parties, under the Credit and Security Agreement have delivered the Required Receivable File to the Collateral Custodian, no later than 2:00 p.m. (I) two (2) Business Days prior to the related Funding Date with respect to Receivables acquired from “Sellers” (as such term is defined an enforceable security interest in the Credit Agreement) of Receivables included in the Sale Transferred Assets on a prior Purchase Date and (II) five (5) Business Days prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be held purchased by the Collateral Custodian in escrow until such Purchase shall occur on the related Purchase DateBuyer as contemplated by this Agreement.
(g) In connection with the Purchase by the Buyer of the Transferred Assets as contemplated by this Agreement, the Seller shall, at its own expense, indicate clearly and unambiguously in its computer files and its financial statements, on or prior to the Purchase Date, that the Transferred Assets have been purchased by the Buyer in accordance with this Agreement.
(h) The Seller agrees to deliver to the Buyer, the Administrative Agent, the Collateral Agent and the Custodian on or before the Purchase Date a computer file containing a true, complete and correct Loan List of all Collateral Loans to be sold or otherwise conveyed hereunder on the Purchase Date (which shall contain the related Principal Balance, Loan number (if any) and Obligor name for each Collateral Loan) as of the Purchase Date. Such file or list shall be delivered to the Buyer as confidential and proprietary, and is automatically incorporated into and made a part of this Agreement.
(i) It is the intention of the parties hereto that the conveyances conveyance of all right, title and interest of the applicable Seller in and to any Sale Transferred Assets to the Buyer as provided in this Section 2.1 shall constitute an absolute transfers transfer conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Transferred Assets shall not be part of the Seller’s bankruptcy estate of such Seller in the event of an Insolvency Event with respect to such the Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables Collateral Loans and the other Sale Transferred Assets to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any the conveyance provided for in this Section 2.1 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”)security, then this Agreement shall also be deemed to be, and hereby is, constitute a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller shall be deemed to have granted (and hereby grants grants) to the Buyer a duly perfected, first priority “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, in and to and under the related Sale Transferred Assets, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale the Transferred Assets together with all of the other obligations of such the Seller hereunder. The Seller and the Buyer shall file or cause to be filed a UCC-1 financing statement naming the Seller, as debtor, the Buyer, as secured party, and the Collateral Agent, as assignee secured party, listing all of the Transferred Assets pledged hereunder as collateral thereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens).
Appears in 1 contract
Samples: Sale, Contribution and Master Participation Agreement (Oxford Square Capital Corp.)
Sale, Transfer and Assignment. (a) On Transfer from the Seller to the Closing Date Seller on the Closing Date. Subject to and upon the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase purchase set forth in Article III), on each Purchase the Closing Date, the applicable Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, Closing Date Seller and the Buyer Closing Date Seller hereby purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such the Seller (including all obligations of the Seller as lender to fund any Revolving Loan or Delayed Draw Loan conveyed by the Seller to the Closing Date Seller hereunder which obligations the Closing Date Seller hereby assumes) in the property identified in clauses (ii)-(v) through (iii) below, whether constituting below and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, softwareaccessions, supporting obligations, accessions or proceeds and other property consisting of, arising out of, or related to any of such Seller, including the following (in each case excluding any the Excluded Amounts and Retained InterestAmounts) (collectively, the “Sale AssetsCollateral”):
(i) the Receivables identified by such Seller as of any Purchase Date which are Collateral Obligations listed on Schedule I each Loan List delivered on the Closing Date by the Seller to the applicable Sale Assignment, together with Closing Date Seller (as set forth on Schedule 1) and all monies due or due, to become due or paid in payment under respect of such Receivables Collateral Obligations on and after the applicable Purchase Closing Date, including, including but not limited toto all collections on such Collateral Obligations and other recoveries thereon, all Collectionsin each case as they arise after the Closing Date;
(ii) all Related Security Liens with respect to the Receivables Collateral Obligations referred to in clause (i) above; and;
(iii) all Related Contracts with respect to the Collateral Obligations referred to in clause (i) above;
(iv) all collateral security granted under any Related Contracts; and
(v) all income and Proceeds proceeds of the foregoing.
(b) Either the Sellers, on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice to the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Date.
(c) The applicable Seller shall, on or prior to each Purchase Date, execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) in the form of Exhibit A hereto.
(d) Except as specifically provided in this Agreement, the sale and purchase of Sale Assets under this Agreement shall be without recourse to the Sellers; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties and covenants made by such Seller pursuant to the terms of this Agreement.
(e) The Buyer, the Administrative Agent, each Lender, each Guarantor, the Backup Servicer and the Collateral Custodian shall not have any obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Sellers (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer or the Collateral Custodian, and any such assumption is expressly disclaimed.
(f) In connection with each Purchase of Sale Assets hereunder (other than the initial Purchase), the applicable Seller shall have delivered the Required Receivable File to the Collateral Custodian, no later than 2:00 p.m. (I) two (2) Business Days prior to the related Funding Date with respect to Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables included in the Sale Assets on a prior Purchase Date and (II) five (5) Business Days prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be held by the Collateral Custodian in escrow until such Purchase shall occur on the related Purchase Date.
(g) It is the intention of the parties hereto that the conveyances of all right, title and interest of the applicable Seller in and to any Sale Assets to the Buyer as provided in this Section 2.1 shall constitute absolute transfers conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Assets shall not be part of the bankruptcy estate of such Seller in the event of an Insolvency Event with respect to such Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables and the other Sale Assets to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any conveyance provided for in this Section 2.1 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”), then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, to and under the related Sale Assets, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets together with all of the other obligations of such Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens).
Appears in 1 contract
Samples: Master Loan Sale Agreement (Golub Capital BDC 3, Inc.)
Sale, Transfer and Assignment. (a) On the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase purchase set forth in Article III), on each Purchase Date, the applicable Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases Purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such the Seller (including all obligations of the Seller as lender to fund any delayed drawdown Collateral Asset conveyed by the Seller to Buyer hereunder which obligations Buyer hereby assumes) in the property identified in clauses (ii)-(v) through (iii) below, whether constituting below and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, softwareaccessions, supporting obligations, accessions or proceeds and other property consisting of, arising out of, or related to any of such Seller, including the following (in each case excluding any the Excluded Amounts and Retained InterestAmounts) (collectively, the “Sale Transferred Assets”):
(i) the Receivables identified by such Seller as of any Purchase Date which are Collateral Assets listed on Schedule I each Collateral Asset List delivered by the Seller to the applicable Sale Assignment, together with Buyer from time to time pursuant to this Agreement and all monies due or due, to become due or paid in payment under respect of such Receivables Collateral Assets on and after the applicable related Purchase Date, including, including but not limited toto all Collections and other recoveries thereon, all Collectionsin each case as they arise after the related Purchase Date;
(ii) all Related Security Liens with respect to the Receivables Collateral Assets referred to in clause (i) above;
(iii) all guaranties, indemnities and warranties, insurance policies, financing statements and other agreements or arrangements of whatever character from time to time arising under the Related Documents which support or secure payment of the Collateral Assets referred to in clause (i) above;
(iv) all Related Documents with respect to the Collateral Assets referred to in clause (i) above; and
(iiiv) all income and Proceeds proceeds of the foregoing generated on and after the Purchase Date. For the avoidance of doubt, and without limiting the foregoing, the term “Collateral” shall, for all purposes of this Agreement, be deemed to include any Collateral Asset funded directly by the Buyer that is an obligation with respect to which the Seller, either itself or through related entities (including the Buyer), directly or indirectly, was involved in the original agreement which created such obligation, or any Collateral Asset acquired by the Buyer as provided in Section 2.03(e).
(b) Either From and after each Purchase Date, the Sellers, Transferred Assets listed on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice relevant Collateral Asset List shall be deemed to the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Datebe Transferred Assets hereunder.
(c) The applicable On each of the Purchase Date and the Credit Date with respect to the Transferred Assets to be acquired or financed by the Buyer on that date, as applicable, the Seller shallshall be deemed to, on or prior to each Purchase Dateand hereby does, execute reaffirm and deliver certify to the Buyer a certificate as of assignment (such Purchase Date or such Credit Date, as applicable, that each of the “Sale Assignment”) representations and warranties in Section 4.02 is true and correct in all material respects as to the form relevant Transferred Assets as of Exhibit A heretosuch Purchase Date or such Credit Date, as applicable, to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date.
(d) Except as specifically provided in this Agreement, the sale and purchase of Sale Transferred Assets under this Agreement shall be without recourse to the SellersSeller; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties warranties, covenants and covenants indemnities made by such the Seller pursuant to the terms of this Agreement, all of which obligations are limited so as not to constitute recourse to the Seller for the credit risk of the obligors. The sale and purchase of any Transferred Asset hereunder does not constitute and is not intended to result in a creation or assumption by the Buyer, or any assignee of the Buyer (including the Collateral Agent for the benefit of the Secured Parties), of any obligation of the Seller as administrative agent, collateral agent, paying agent or any other similar obligation under any Collateral Asset.
(e) In connection with each Purchase of Transferred Assets as contemplated by this Agreement, the Buyer hereby directs the Seller to, and the Seller agrees that it will Deliver, or cause to be Delivered, to the Collateral Agent, each Collateral Asset being transferred to the Buyer on such Purchase Date in accordance the applicable provisions of the Pledge and Security Agreement. The Buyer, Seller shall take such action reasonably requested by the Buyer or the Administrative Agent, each Lenderfrom time to time hereafter, each Guarantor, that may be necessary or appropriate to ensure that the Backup Servicer Buyer has an enforceable ownership interest and its assigns under the Collateral Custodian shall not Credit Agreement have any obligation or liability to any Obligor (including any obligation to perform any of an enforceable and perfected security interest in the obligations of the Sellers (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed Transferred Assets Purchased by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer or the Collateral Custodian, and any such assumption is expressly disclaimedBuyer as contemplated by this Agreement.
(f) In connection with the Purchase by the Buyer of the Transferred Assets as contemplated by this Agreement, the Seller further agrees that it will, at its own expense, indicate clearly and unambiguously in its computer files and its financial statements, on or prior to each Purchase of Sale Date, that such Transferred Assets hereunder has been Purchased by the Buyer in accordance with this Agreement.
(other than g) The Seller further agrees to deliver to the initial Purchase)Buyer on or before each Purchase Date a true, complete and correct Collateral Asset List (which shall contain for each Transferred Asset to be Purchased on such Purchase Date, the applicable Seller shall have delivered the Required Receivable File to the origination date, maturity date, loan type, related outstanding principal balance or unfunded commitment, loan number (if any) and obligor name for each Collateral Custodian, no later than 2:00 p.m. (IAsset) two (2) Business Days prior to the related Funding Date with respect to Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables included in the Sale Assets on a prior Purchase Date and (II) five (5) Business Days prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be held by the Collateral Custodian in escrow until such Purchase shall occur on the related Purchase Date. Such file or list shall be marked as Schedule I to this Agreement, shall be delivered to the Buyer as confidential and proprietary, and is hereby incorporated into and made a part of this Agreement as such Schedule I may be supplemented and amended from time to time.
(gh) It is the intention of the parties hereto that the conveyances conveyance of all right, title and interest of the applicable Seller in and to any Sale the Transferred Assets to the Buyer as provided in this Section 2.1 2.01 shall constitute an absolute transfers sale, conveyance and transfer conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Transferred Assets shall not be part of the Seller’s bankruptcy estate of such Seller in the event of an Insolvency Event a bankruptcy, insolvency, reorganization, liquidation or similar proceeding of the Seller (or in the event that a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed with respect to such the Seller). Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables Collateral Assets and the other Sale Transferred Assets to the Buyer to secure a debt or other obligation of the applicable Seller. IfHowever, howeverto protect the Buyer’s rights in the event that, notwithstanding the intention of the partiesparties expressed herein, any the conveyance provided for in this Section 2.1 2.01 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”)security, then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a duly perfected, first priority “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, in and to and under the related Sale AssetsTransferred Assets (subject to Permitted Liens), now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale the Transferred Assets together with all of the other obligations of such the Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Lawapplicable law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file .
(at its own expensei) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens)[Reserved].
Appears in 1 contract
Samples: Loan Sale and Contribution Agreement (Stone Point Credit Corp)
Sale, Transfer and Assignment. (a) On the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase purchase set forth in Article III), on each Purchase Date, with respect to items of Collateral conveyed by the applicable Seller hereunder, the Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases Purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such the Seller (including all obligations of the Seller as lender to fund any Revolving Collateral Obligation or Delayed Funding Obligation conveyed by the Seller to Buyer hereunder which obligations Buyer hereby assumes) in the property identified in clauses (ii)-(v) through (iii) below, whether constituting below and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, softwareaccessions, supporting obligations, accessions or proceeds and other property consisting of, arising out of, or related to any of such Seller, including the following (in each case excluding any the Excluded Amounts and Retained InterestAmounts) (collectively, the “Sale AssetsCollateral”):
(i) the Receivables identified by such Seller as of any Purchase Date which are Collateral Obligations listed on Schedule I the Loan List on the Closing Date and any additional Collateral Obligations included on the Loan List from time to time following the applicable Sale AssignmentClosing Date pursuant to this Agreement, together with in each case, including all monies due or due, to become due or paid in payment under respect of such Receivables Collateral Obligations on and after the applicable related Purchase Date, including, including but not limited toto all Collections and other recoveries thereon, all Collectionsin each case as they arise after the related Purchase Date;
(ii) all Related Security Liens with respect to the Receivables Collateral Obligations referred to in clause (i) above; and;
(iii) all Related Contracts with respect to the Collateral Obligations referred to in clause (i) above;
(iv) all collateral security granted under any Related Contracts; and
(v) all income and Proceeds proceeds of the foregoing.
(b) Either the Sellers, on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice In addition to the non-terminating party (i.e.rights of the Buyer to acquire Collateral Obligations from the Seller, the Sellers or Buyer may fund directly any Collateral Obligation directly as a primary lender at the Buyerorigination thereof (each such Collateral Obligation, as the case may be) not less than 30 days prior to the Termination Effective Datea “Buyer Originated Obligation”).
(c) The applicable Seller shall, on or prior to From and after each Purchase Date following the Closing Date, execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) additional Collateral Obligations included in the form of Exhibit A heretosupplemented Loan List shall be deemed to be Collateral hereunder.
(d) On any Purchase Date with respect to the Collateral to be acquired by the Buyer on that date, the Seller shall be deemed to, and hereby does, reaffirm and certify to the Buyer, the Collateral Agent, on behalf of the Secured Parties, and the Facility Agent, as of such Purchase Date that each of the representations and warranties in Section 4.02 is true and correct in all material respects as of such Purchase Date.
(e) Except as specifically provided in this Agreement, the sale and purchase of Sale Assets Collateral under this Agreement shall be without recourse to the SellersSeller; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties warranties, covenants and covenants indemnities made by such the Seller pursuant to the terms of this Agreement.
(e) The Buyer, all of which obligations are limited so as not to constitute recourse to the Administrative Agent, each Lender, each Guarantor, Seller for the Backup Servicer and the Collateral Custodian shall not have any obligation or liability to any Obligor (including any obligation to perform any credit risk of the obligations of the Sellers (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer or the Collateral Custodian, and any such assumption is expressly disclaimedObligors.
(f) In connection with each Purchase of Sale Assets hereunder Collateral as contemplated by this Agreement, the Buyer hereby directs the Seller to, and the Seller agrees that it will deliver in accordance with the Credit Agreement, or cause to be delivered in accordance with the Credit Agreement (other than on behalf of the initial PurchaseBorrower), to the Custodian, as agent and custodian for the Collateral Agent, each Collateral Obligation being transferred to the Buyer on such Purchase Date in accordance with the applicable Seller provisions of the Credit Agreement. Each item of Collateral shall have be delivered to the Required Receivable File Custodian by:
(i) with respect to such of the Collateral as constitutes an instrument, tangible chattel paper, a negotiable document, or money, causing the Custodian to take possession of such instrument indorsed to the Custodian or in blank, or such money, negotiable document, or tangible chattel paper, in the State of Wisconsin separate and apart from all other property held by the Custodian;
(ii) with respect to such of the Collateral as constitutes a certificated security in bearer form, causing the Custodian to take possession of the related security certificate in the State of Wisconsin;
(iii) with respect to such of the Collateral as constitutes a certificated security in registered form, causing the Custodian to take possession of the related security certificate in the State of Wisconsin, indorsed to the Custodian or in blank by an effective indorsement, or registered in the name of the Custodian, upon original issue or registration of transfer by the issuer of such certificated security;
(iv) with respect to such of the Collateral as constitutes an uncertificated security, causing the issuer of such uncertificated security to register the Custodian or its nominee for the account of the Custodian as the registered owner of such uncertificated security;
(v) with respect to such of the Collateral as constitutes a security entitlement, causing the Securities Intermediary to indicate by book entry that the financial asset relating to such security entitlement has been credited to the Custodial Account;
(vi) with respect to such of the Collateral as constitutes a deposit account, causing such deposit account to be established and maintained in the name of the Collateral Agent or the Custodian, as applicable, by a bank the jurisdiction of which for purposes of the UCC is the State of New York; and
(vii) taking such additional or alternative procedures as may hereafter become appropriate to grant a first priority, perfected security interest in such items of the Collateral to the Collateral CustodianAgent, no later than 2:00 p.m. (I) two (2) Business Days prior to consistent with applicable law or regulations. If any item of Collateral is a financial asset issued by an issuer that is not the related Funding Date with respect to Receivables acquired from “Sellers” (United States of America, an agency or instrumentality thereof, or some other United States person or entity, and if such item cannot be delivered as set forth above, such term is defined in the Credit Agreement) of Receivables included in the Sale Assets on a prior Purchase Date and (II) five (5) Business Days prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall item may be held delivered by the Collateral Custodian Agent holding such item in escrow until an account created and maintained in the name of the Collateral Agent with a banking or securities institution or a clearing agency or system located outside the United States such that the Collateral Agent holds a first priority, perfected security interest in such item of Collateral.
(g) The Seller shall take such action requested by the Buyer or the Facility Agent, from time to time hereafter, that may be necessary or appropriate to ensure that the Buyer has an enforceable ownership interest and its assigns under the Credit Agreement have an enforceable and perfected security interest in the Collateral Purchased by the Buyer as contemplated by this Agreement.
(h) In connection with the Purchase by the Buyer of the Collateral as contemplated by this Agreement, the Seller further agrees that it will, at its own expense, indicate clearly and unambiguously in its computer files and its financial statements, on or prior to each Purchase Date, that such Collateral has been Purchased by the Buyer in accordance with this Agreement.
(i) The Seller further agrees to deliver to the Buyer on or before each Purchase Date a computer file containing a true, complete and correct Loan List (which shall occur on contain the related Principal Balance, outstanding principal balance and Obligor name for each Collateral Obligation) as of the related Purchase Date. Such file or list shall be marked as Schedule I to this Agreement, shall be delivered to the Buyer as confidential and proprietary, and is hereby incorporated into and made a part of this Agreement as such Schedule I may be supplemented and amended from time to time.
(gj) It is the intention of the parties hereto that the conveyances conveyance of all right, title and interest of the applicable Seller in and to any Sale Assets the Collateral to the Buyer as provided in this Section 2.1 2.01 shall constitute an absolute transfers sale, conveyance and transfer conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Assets Collateral shall not be part of the Seller’s bankruptcy estate of such Seller in the event of an Insolvency Event any bankruptcy or insolvency proceedings with respect to such the Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables Collateral Obligations and the other Sale Assets Collateral to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any the conveyance provided for in this Section 2.1 2.01 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”)security, then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a duly perfected, first priority “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, in and to and under the related Sale AssetsCollateral, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets the Collateral together with all of the other obligations of such the Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Lawapplicable law, which rights and remedies shall be cumulative. In connection herewithThe Seller authorizes Buyer, the Facility Agent and the Collateral Agent on behalf of the Secured Parties to file UCC financing statements naming the Seller as “debtor”, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for as “assignor secured party” and the Collateral Agent as “assignee secured party”, or similar applicable designations, and describing the Collateral, in each jurisdiction that the Buyer deems necessary in order to have a perfected protect the security interest interests in the Sale Assets Collateral granted under this Section 2.01.
(k) The Seller and the Buyer agree and acknowledge that, in accordance with the event terms of the Retention Letter and the Credit Agreement, in relation to every Collateral Obligation that the Seller sells or transfers to the Buyer and in connection with each Buyer Originated Obligation (excluding any asset acquired pursuant to an Inconsistent Determination (each offer, exchange or exercise of rights or remedies pursuant to a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action Collateral Obligation owned by the applicable Seller Buyer), the Seller, either itself or through related entities (including the Buyer), directly or indirectly, was involved or will be involved in negotiating the original agreements which created or will create over 50% (measured by total nominal amount) of all the Collateral Obligations acquired (or committed to be acquired) by the Buyer, or any amendment to this Agreement such percentage being required, each representation or warranty by such Seller attesting as to calculated in accordance with clauses (h) and (i) of the valid conveyance definition of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest “Eligibility Criteria” in the Sale Assets, free and clear of all Liens (except for Permitted Liens)Credit Agreement.
Appears in 1 contract
Samples: Master Loan Sale and Contribution Agreement (AB Private Credit Investors Corp)
Sale, Transfer and Assignment. (a) On the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase set forth in Article III), on each Purchase Date, (x) with respect to items of Collateral conveyed by the applicable Seller hereunder, the Seller hereby sells, contributes, transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases Purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such Seller the Seller, and (y) in all other cases, with respect to items of Collateral purchased by or contributed to the Buyer hereunder, the Buyer hereby purchases or takes all right, title and interest (whether now owned or hereafter acquired or arising and wherever located), in the property identified in clauses (i) through - (iii) below, whether constituting below and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, software, supporting obligations, accessions or accessions, and other property consisting of, arising out of, or related to any of such Sellerthe following, including the following property, whether now owned or existing or hereafter created, arising or acquired and wherever located (in each case excluding any the Retained Interest and the Excluded Amounts and Retained InterestAmounts) (collectively, the “Sale Assets”Purchased Collateral,” in the case of collateral purchased by the Buyer hereunder, and the “Contributed Collateral,” in the case of collateral contributed to the Buyer hereunder, as applicable):
(i) the Receivables Loans identified by such the Seller as of the initial Cut-Off Date which are listed on Schedule I hereto as being purchased by or contributed to the Buyer, and the Loans identified by the Seller as of any Purchase subsequent Cut-Off Date which are listed on Schedule I to the applicable Sale Assignmentrelated Loan Assignment as being purchased by or contributed to the Buyer, together with all monies due or to become due in payment under such Receivables Loans on and after the applicable Purchase related Cut-Off Date, including, including but not limited to, to all Collections, but excluding any Attached Equity;
(ii) all Related Security with respect to the Receivables Loans referred to in clause (i) above; and
(iii) all income and Proceeds of the foregoing. For the avoidance of doubt, and without limiting the foregoing, the term “Collateral” shall, for all purposes of this Agreement, be deemed to include any Asset (other than Attached Equity) acquired directly by the Buyer from a third party in a transaction arranged and underwritten by the Seller or any Asset acquired by the Buyer in a transaction in which the Buyer is the designee of the Seller under the instruments of conveyance relating to the applicable Asset.
(b) Either the Sellers, on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice to the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Date.
(c) The applicable Seller shall, shall on or prior to each any Purchase Date, Date execute and deliver to the Buyer a certificate of assignment (the each, a “Sale Loan Assignment”) in the form of Exhibit A hereto. From and after such Purchase Date, the Purchased Collateral and/or Contributed Collateral listed on Schedule I to the related Loan Assignment shall be deemed to be Purchased Collateral or Contributed Collateral, as the case may be, hereunder.
(c) On or before any Purchase Date with respect to the Purchased Collateral and Contributed Collateral to be acquired by the Buyer on such date, the Seller shall provide the Buyer with an Officer’s Certificate, in the form of Exhibit B hereto, signed by a duly authorized Responsible Officer certifying, as of such Purchase Date, to each of the items in Section 4.2.
(d) Except as specifically provided in this Agreement, the sale and purchase of Sale Assets Purchased Collateral under this Agreement shall be without recourse to the SellersSeller; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties warranties, covenants and covenants indemnities made by such the Seller pursuant to the terms of this Agreement, all of which obligations are limited so as not to constitute recourse to the Seller for the credit risk of the Obligors.
(e) The Buyer, the Administrative Agent, each LenderPurchaser Agent, each GuarantorPurchaser, the other Secured Parties, the Backup Servicer and the Collateral Custodian Trustee shall not have any obligation or liability to any Obligor (or client of the Seller, including any obligation to perform any of the obligations of the Sellers Seller (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any LenderPurchaser Agent, any Guarantorthe Purchasers, the Secured Parties, the Backup Servicer Servicer, or the Collateral CustodianTrustee, and any such assumption is expressly disclaimed.
(f) In connection with each Purchase of Sale Assets hereunder (other than the initial Purchase)Purchased Collateral and each contribution of Contributed Collateral hereunder, the applicable Seller shall have delivered deliver to the Trustee (A) the Required Receivable File to the Collateral Custodian, no later than 2:00 p.m. (I) two (2) Business Days Loan Documents with respect thereto on or prior to the related Funding Closing Date with respect to Receivables acquired from “Sellers” (as such term is defined except for any UCCs, which shall be in the Credit Agreementpossession of the Trustee within two Business Days after the Closing Date) as to any Existing Loans, and (B) the duly executed original promissory note and the duly executed faxed copies of Receivables the other documents included in the Sale Assets Required Loan Documents (the “Faxed Documents”) on a prior Purchase Date and (II) five (5) Business Days or prior to the related Purchase Date with respect (and, if prior to all other Receivables acquired from “Sellers” (as the related Purchase Date, such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files promissory note and Faxed Documents shall be held by the Collateral Custodian Trustee on behalf of the Purchasers in escrow until such Purchase shall occur on the related Purchase Date); provided that, with respect to any Loan closed in escrow, the Seller shall deliver to the Administrative Agent a certificate in the form of Exhibit L to the Sale and Servicing Agreement with respect to such Loan on or prior to the related Purchase Date; and provided, further, that each related set of Required Loan Documents and each related Servicing File shall be in the possession of the Trustee and the Servicer, respectively, within two Business Days after the related Purchase Date.
(g) In connection with each Purchase of Purchased Collateral and each contribution of Contributed Collateral hereunder, the Seller hereby grants to each of the Buyer, the Administrative Agent, the Trustee and the Servicer and the Backup Servicer an irrevocable, non-exclusive license to use, without royalty or payment of any kind, all software used by the Seller to account for the Purchased Collateral and Contributed Collateral, to the extent necessary to administer the Purchased Collateral and Contributed Collateral, whether such software is owned by the Seller or is owned by others and used by the Seller under license agreements with respect thereto; provided that, should the consent of any licensor of such software be required for the grant of the license described herein to be effective or for the Buyer to assign such licenses to the Servicer, the Backup Servicer or any other Successor Servicer, the Seller hereby agrees that upon the request of the Buyer, the Administrative Agent or the Trustee, the Seller shall use its best efforts to obtain the consent of such third-party licensor. The license granted hereby shall be irrevocable until the Collection Date and shall terminate on the date this Agreement terminates in accordance with its terms. The Seller (i) shall take such action requested by the Buyer, the Administrative Agent or the Trustee, from time to time hereafter, that may be necessary or appropriate to ensure that the Buyer and its assigns under the Sale and Servicing Agreement have an enforceable ownership interest in the Collateral purchased by the Buyer or contributed to the Buyer as contemplated by this Agreement, and (ii) shall use its best efforts to ensure that each of the Buyer, the Administrative Agent, the Trustee and the Servicer (or the Backup Servicer and any Successor Servicer) has an enforceable right (whether by license or sublicense or otherwise) to use all of the computer software used to account for the Purchased Collateral and Contributed Collateral and/or to recreate the related Loan Files.
(h) In connection with the purchase by the Buyer of Collateral and the contribution of Collateral by the Seller to the Buyer as contemplated by this Agreement, the Seller further agrees that it shall, at its own expense, indicate clearly and unambiguously in its computer files on or prior to each Purchase Date, and its financial statements, that such Purchased Collateral has been purchased by the Buyer and such Contributed Collateral has been contributed to the Buyer in accordance with this Agreement.
(i) The Seller further agrees to deliver to the Buyer on or before each Purchase Date a computer file containing a true, complete and correct list of all Loans to be sold hereunder on such Purchase Date and contributed by the Seller on or about the Purchase Date, identified by Obligor’s name and Outstanding Loan Balance as of the related Cut-Off Date. Such file or list shall be marked as Schedule I to this Agreement, shall be delivered to the Buyer as confidential and proprietary, and is hereby incorporated into and made a part of this Agreement, as such Schedule I may be supplemented and amended from time to time.
(j) It is the intention of the parties hereto that the conveyances conveyance of all right, title and interest of the applicable Seller in and to any Sale Assets to the Buyer Purchased Collateral and Contributed Collateral as provided in this Section 2.1 shall constitute an absolute transfers transfer conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Assets Purchased Collateral and Contributed Collateral shall not be part of the Seller’s bankruptcy estate of such Seller in the event of an Insolvency Event with respect to such the Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables Loans and the other Sale Assets Purchased Collateral and Contributed Collateral to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any the conveyance provided for in this Section 2.1 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”)security, then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a duly perfected, first priority “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, to and under the related Sale AssetsPurchased Collateral and Contributed Collateral, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets the Purchased Collateral together with all of the other obligations of such the Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens).
Appears in 1 contract
Sale, Transfer and Assignment. (a) On Transfer from the Seller to the Intermediate Seller on the Closing Date. Subject to and upon the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase purchase set forth in Article III), on each Purchase the Closing Date, the applicable Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, Intermediate Seller and the Buyer Intermediate Seller hereby purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such the Seller (including all obligations of the Seller as lender to fund any Revolving Loan or Delayed Draw Loan conveyed by the Seller to the Intermediate Seller hereunder which obligations the Intermediate Seller hereby assumes) in the property identified in clauses (ii)-(v) through (iii) below, whether constituting below and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, softwareaccessions, supporting obligations, accessions or proceeds and other property consisting of, arising out of, or related to any of such Seller, including the following (in each case excluding any the Excluded Amounts and Retained InterestAmounts) (collectively, together with any of the following relating to any Collateral Obligation conveyed pursuant to Section 2.01(d) below, the “Sale AssetsCollateral”):
(i) the Receivables identified by such Seller as of any Purchase Date which are Collateral Obligations listed on Schedule I the Loan List delivered on the Closing Date by the Seller to the applicable Sale AssignmentIntermediate Seller (as set forth on Schedule 1), together with and all monies due or due, to become due or paid in payment under respect of such Receivables Collateral Obligations on and after the applicable related Purchase Date, including, including but not limited toto all collections on such Collateral Obligations and other recoveries thereon, all Collectionsin each case as they arise after the related Purchase Date;
(ii) all Related Security Liens with respect to the Receivables Collateral Obligations referred to in clause (i) above; and;
(iii) all Related Contracts with respect to the Collateral Obligations referred to in clause (i) above;
(iv) all collateral security granted under any Related Contracts; and
(v) all income and Proceeds proceeds of the foregoing.
(b) Either the Sellers, on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice to the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Date.
(c) The applicable Seller shall, on or prior to each Purchase Date, execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) in the form of Exhibit A hereto.
(d) Except as specifically provided in this Agreement, the sale and purchase of Sale Assets under this Agreement shall be without recourse to the Sellers; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties and covenants made by such Seller pursuant to the terms of this Agreement.
(e) The Buyer, the Administrative Agent, each Lender, each Guarantor, the Backup Servicer and the Collateral Custodian shall not have any obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Sellers (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer or the Collateral Custodian, and any such assumption is expressly disclaimed.
(f) In connection with each Purchase of Sale Assets hereunder (other than the initial Purchase), the applicable Seller shall have delivered the Required Receivable File to the Collateral Custodian, no later than 2:00 p.m. (I) two (2) Business Days prior to the related Funding Date with respect to Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables included in the Sale Assets on a prior Purchase Date and (II) five (5) Business Days prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be held by the Collateral Custodian in escrow until such Purchase shall occur on the related Purchase Date.
(g) It is the intention of the parties hereto that the conveyances of all right, title and interest of the applicable Seller in and to any Sale Assets to the Buyer as provided in this Section 2.1 shall constitute absolute transfers conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Assets shall not be part of the bankruptcy estate of such Seller in the event of an Insolvency Event with respect to such Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables and the other Sale Assets to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any conveyance provided for in this Section 2.1 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”), then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, to and under the related Sale Assets, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets together with all of the other obligations of such Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens).
Appears in 1 contract
Sale, Transfer and Assignment. (a) On Transfer from the Seller to the Buyer on the Closing Date. Subject to and upon the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase purchase set forth in Article III), on the Closing Date (or, in the case of each Purchase DateClosing Date Participation, the applicable Elevation Date), the Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, Buyer and the Buyer hereby purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such the Seller (including all obligations of the Seller as lender to fund any Revolving Collateral Obligation or Delayed Drawdown Collateral Obligation conveyed by the Seller to the Buyer hereunder which obligations the Buyer hereby assumes) in the property identified in clauses (ii)-(v) through (iii) below, whether constituting below and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, softwareaccessions, supporting obligations, accessions or proceeds and other property consisting of, arising out of, or related to any of such Seller, including the following (in each case excluding any the Excluded Amounts and Retained InterestAmounts) (collectively, the “Sale AssetsCollateral”):
): (i) the Receivables identified by such Seller as of any Purchase Date which are Collateral Obligations listed on Schedule I each Loan List delivered on the Closing Date by the Seller to the applicable Sale Assignment, together with Buyer (as set forth on Schedule 1) and all monies due or due, to become due or paid in payment under respect of such Receivables Collateral Obligations on and after the applicable Purchase Closing Date, including, including but not limited toto all collections on such Collateral Obligations and other recoveries thereon, all Collections;
in each case as they arise after the Closing Date; (ii) all Related Security Liens with respect to the Receivables Collateral Obligations referred to in clause (i) above; and
(iii) all Related Contracts with respect to the Collateral Obligations referred to in clause (i) above; (iv) all collateral security granted under any Related Contracts; and -6- (v) all income and Proceeds proceeds of the foregoing.
(b) Either the Sellers, on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice to the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Date.
(c) The applicable Seller shall, on or prior to each Purchase Date, execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) in the form of Exhibit A hereto.
(d) Except as specifically provided in this Agreement, the sale and purchase of Sale Assets under this Agreement shall be without recourse to the Sellers; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties and covenants made by such Seller pursuant to the terms of this Agreement.
(e) The Buyer, the Administrative Agent, each Lender, each Guarantor, the Backup Servicer and the Collateral Custodian shall not have any obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Sellers (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer or the Collateral Custodian, and any such assumption is expressly disclaimed.
(f) In connection with each Purchase of Sale Assets hereunder (other than the initial Purchase), the applicable Seller shall have delivered the Required Receivable File to the Collateral Custodian, no later than 2:00 p.m. (I) two (2) Business Days prior to the related Funding Date with respect to Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables included in the Sale Assets on a prior Purchase Date and (II) five (5) Business Days prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be held by the Collateral Custodian in escrow until such Purchase shall occur on the related Purchase Date.
(g) It is the intention of the parties hereto that the conveyances of all right, title and interest of the applicable Seller in and to any Sale Assets to the Buyer as provided in this Section 2.1 shall constitute absolute transfers conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Assets shall not be part of the bankruptcy estate of such Seller in the event of an Insolvency Event with respect to such Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables and the other Sale Assets to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any conveyance provided for in this Section 2.1 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”), then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, to and under the related Sale Assets, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets together with all of the other obligations of such Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens).
Appears in 1 contract
Samples: Master Loan Sale Agreement
Sale, Transfer and Assignment. (a) On the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase purchase set forth in Article III), on each Purchase Date, the applicable Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases Purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such the Seller (including all obligations of the Seller as lender to fund any Revolving Collateral Loan or Delayed Funding Loan conveyed by the Seller to Buyer hereunder which obligations Buyer hereby assumes) in the property identified in clauses (i) through - (iiiv) below, whether constituting below and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, softwareaccessions, supporting obligations, accessions or proceeds and other property consisting of, arising out of, or related to any of such Seller, including the following (in each case excluding any the Excluded Amounts and Retained InterestAmounts) (collectively, the “Sale AssetsCollateral”):
(i) the Receivables identified by such Seller as of any Purchase Date which are Collateral Loans listed on Schedule I each Loan List delivered by the Seller to the applicable Sale Assignment, together with Buyer from time to time pursuant to this Agreement and all monies due or due, to become due or paid in payment under respect of such Receivables Collateral Loans on and after the applicable related Purchase Date, including, including but not limited toto all Collections and other recoveries thereon, all Collectionsin each case as they arise after the related Purchase Date;
(ii) all Related Security Liens with respect to the Receivables Collateral Loans referred to in clause (i) above; and;
(iii) all Related Contracts with respect to the Collateral Loans referred to in clause (i) above;
(iv) all collateral security granted under any Related Contracts; and
(v) all income and Proceeds proceeds of the foregoing. For the avoidance of doubt, and without limiting the foregoing, the term “Collateral” shall, for all purposes of this Agreement, be deemed to include any Collateral Loan settled directly with the Buyer from a third party in a transaction intermediated, arranged and underwritten by the Seller or any Collateral Loan acquired by the Buyer in a transaction in which the Seller passes its equitable title to the Buyer as designee of the Seller under the instruments of conveyance relating to the applicable Collateral Loan.
(b) Either From and after each Purchase Date, the Sellers, Collateral listed on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice Loan List shall be deemed to the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Datebe Collateral hereunder.
(c) The applicable On any Purchase Date with respect to the Collateral to be acquired by the Buyer on that date, the Seller shallshall be deemed to, and hereby does, reaffirm and certify to the Buyer, the Collateral Agent, on or prior to each behalf of the Secured Parties, and the Administrative Agent, as of such Purchase Date, execute that each of the representations and deliver to the Buyer a certificate warranties in Section 4.02 is true and correct as of assignment (the “Sale Assignment”) in the form of Exhibit A heretosuch Purchase Date.
(d) Except as specifically provided in this Agreement, the sale and purchase of Sale Assets Collateral under this Agreement shall be without recourse to the SellersSeller; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties warranties, covenants and covenants indemnities made by such the Seller pursuant to the terms of this Agreement, all of which obligations are limited so as not to constitute recourse to the Seller for the credit risk of the Obligors.
(e) In connection with each Purchase of Collateral as contemplated by this Agreement, the Buyer hereby directs the Seller to, and the Seller agrees that it will deliver in accordance with the Credit Agreement, or cause to be delivered in accordance with the Credit Agreement (on behalf of the Borrower), to the Custodian, as agent and custodian for the Collateral Agent, each Collateral Loan being transferred to the Buyer on such Purchase Date in accordance with the applicable provisions of the Credit Agreement. Each item of Collateral shall be delivered to the Custodian by:
(i) with respect to such of the Collateral as constitutes an instrument, tangible chattel paper, a negotiable document, or money, causing the Custodian to take possession of such instrument indorsed to the Custodian or in blank, or such money, negotiable document, or tangible chattel paper, in the State of New York separate and apart from all other property held by the Custodian;
(ii) with respect to such of the Collateral as constitutes a certificated security in bearer form, causing the Custodian to take possession of the related security certificate in the State of New York;
(iii) with respect to such of the Collateral as constitutes a certificated security in registered form, causing the Custodian to take possession of the related security certificate in the State of New York, indorsed to the Custodian or in blank by an effective indorsement, or registered in the name of the Custodian, upon original issue or registration of transfer by the issuer of such certificated security;
(iv) with respect to such of the Collateral as constitutes an uncertificated security, causing the issuer of such uncertificated security to register the Custodian or its nominee for the account of the Custodian as the registered owner of such uncertificated security;
(v) with respect to such of the Collateral as constitutes a security entitlement, causing the Securities Intermediary to indicate by book entry that the financial asset relating to such security entitlement has been credited to the Custodial Account;
(vi) with respect to such of the Collateral as constitutes a deposit account, causing such deposit account to be established and maintained in the name of the Collateral Agent or the Custodian, as applicable, by a bank the jurisdiction of which for purposes of the UCC is the State of New York; and
(vii) taking such additional or alternative procedures as may hereafter become appropriate to grant a first priority, perfected security interest in such items of the Collateral to the Collateral Agent, consistent with applicable law or regulations. If any item of Collateral is a financial asset issued by an issuer that is not the United States of America, an agency or instrumentality thereof, or some other United States person or entity, and if such item cannot be delivered as set forth above, such item may be delivered by the Collateral Agent holding such item in an account created and maintained in the name of the Collateral Agent with a banking or securities institution or a clearing agency or system located outside the United States such that the Collateral Agent holds a first priority, perfected security interest in such item of Collateral. The BuyerSeller represents and warrants that each Collateral Loan purchased prior to the date hereof pursuant to the Original Agreement has been delivered in accordance with the requirements of this clause (e). The Seller shall record and file (or cause to be recorded or filed) on or before the related Purchase Date all financing statements, and the Seller agrees to record and file (or cause to be recorded or filed) after the related Purchase Date all appropriate financing statements, continuation statements, and other amendments, meeting the requirements of applicable law in such manner and in such jurisdictions as are necessary to perfect and protect the interests of the Collateral Agent and the Secured Parties in the Collateral under the applicable Uniform Commercial Code against all creditors of and purchasers from the Seller. The Seller promptly shall deliver (or cause to be delivered) file-stamped copies of such financing statements, continuation statements, and amendments to the Collateral Agent and the Administrative Agent. The Seller shall also take such action requested by the Buyer or the Administrative Agent, each Lenderfrom time to time hereafter, each Guarantor, that may be necessary or appropriate to ensure that the Backup Servicer Buyer has an enforceable ownership interest and its assigns under the Credit Agreement have an enforceable and perfected security interest in the Collateral Custodian shall not have any obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Sellers (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed Purchased by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer or the Collateral Custodian, and any such assumption is expressly disclaimedBuyer as contemplated by this Agreement.
(f) In connection with the Purchase by the Buyer of the Collateral as contemplated by this Agreement, the Seller further agrees that it will, at its own expense, indicate clearly and unambiguously in its computer files and its financial statements, on or prior to each Purchase of Sale Assets hereunder (other than the initial Purchase)Date, the applicable Seller shall have delivered the Required Receivable File to the that such Collateral Custodian, no later than 2:00 p.m. (I) two (2) Business Days prior to the related Funding Date with respect to Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables included in the Sale Assets on a prior Purchase Date and (II) five (5) Business Days prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be held has been Purchased by the Collateral Custodian Buyer in escrow until such Purchase shall occur on the related Purchase Dateaccordance with this Agreement.
(g) It is The Seller further agrees to deliver to the intention Buyer on or before each Purchase Date a computer file containing a true, complete and correct Loan List (which shall contain the related Principal Balance, outstanding principal balance, loan number and Obligor name for each Collateral Loan) as of the parties hereto that the conveyances of all rightrelated Purchase Date. Such file or list shall be marked as Schedule I to this Agreement, title and interest of the applicable Seller in and to any Sale Assets shall be delivered to the Buyer as provided in this Section 2.1 shall constitute absolute transfers conveying good titleconfidential and proprietary, free and clear of any Lien (other than Permitted Liens) is hereby incorporated into and that the Sale Assets shall not be made a part of the bankruptcy estate of such Seller in the event of an Insolvency Event with respect to such Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables and the other Sale Assets to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any conveyance provided for in this Section 2.1 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”), then this Agreement shall also as such Schedule I may be deemed supplemented and amended from time to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, to and under the related Sale Assets, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets together with all of the other obligations of such Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens)time.
Appears in 1 contract
Samples: Loan Sale and Contribution Agreement (Fifth Street Senior Floating Rate Corp.)
Sale, Transfer and Assignment. (a) On the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase purchase set forth in Article III), on each Purchase Date, the applicable Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases Purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such the Seller (including all obligations of the Seller as lender to fund any Revolving Collateral Loan or Delayed Funding Loan conveyed by the Seller to Buyer hereunder which obligations Buyer hereby assumes) in the property identified in clauses (i) through - (iiiv) below, whether constituting below and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, softwareaccessions, supporting obligations, accessions or proceeds and other property consisting of, arising out of, or related to any of such Seller, including the following (in each case excluding any the Excluded Amounts and Retained InterestAmounts) (collectively, the “Sale AssetsCollateral”):
(i) the Receivables identified by such Seller as of any Purchase Date which are Collateral Loans listed on Schedule I each Loan List delivered by the Seller to the applicable Sale Assignment, together with Buyer from time to time pursuant to this Agreement and all monies due or due, to become due or paid in payment under respect of such Receivables Collateral Loans on and after the applicable related Purchase Date, including, including but not limited toto all Collections and other recoveries thereon, all Collectionsin each case as they arise after the related Purchase Date;
(ii) all Related Security Liens with respect to the Receivables Collateral Loans referred to in clause (i) above; and;
(iii) all Related Contracts with respect to the Collateral Loans referred to in clause (i) above;
(iv) all collateral security granted under any Related Contracts; and
(v) all income and Proceeds proceeds of the foregoing. For the avoidance of doubt, and without limiting the foregoing, the term “Collateral” shall, for all purposes of this Agreement, be deemed to include any Collateral Loan settled directly with the Buyer from a third party in a transaction intermediated, arranged and underwritten by the Seller or any Collateral Loan acquired by the Buyer in a transaction in which the Seller passes its equitable title to the Buyer as designee of the Seller under the instruments of conveyance relating to the applicable Collateral Loan. Seller agrees that for any transaction intermediated, arranged and underwritten by the Seller in which a Collateral Loan or Eligible Investment is settled directly with the Buyer or with respect to any Collateral Loan or Eligible Investment acquired by the Buyer in a transaction in which the Buyer is designee of the Seller, in each such case, the Seller shall have held a beneficial interest in such Collateral Loan or Eligible Investment for a period of at least 48 hours before such settlement or acquisition by the Buyer.
(b) Either From and after each Purchase Date, the Sellers, Collateral listed on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice Loan List shall be deemed to the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Datebe Collateral hereunder.
(c) The applicable On any Purchase Date with respect to the Collateral to be acquired by the Buyer on that date, the Seller shallshall be deemed to, and hereby does, reaffirm and certify to the Buyer, the Collateral Agent, on or prior to each behalf of the Secured Parties, and the Administrative Agent, as of such Purchase Date, execute that each of the representations and deliver to the Buyer a certificate warranties in Section 4.02 is true and correct as of assignment (the “Sale Assignment”) in the form of Exhibit A heretosuch Purchase Date.
(d) Except as specifically provided in this Agreement, the sale and purchase of Sale Assets Collateral under this Agreement shall be without recourse to the SellersSeller; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties warranties, covenants and covenants indemnities made by such the Seller pursuant to the terms of this Agreement, all of which obligations are limited so as not to constitute recourse to the Seller for the credit risk of the Obligors.
(e) In connection with each Purchase of Collateral as contemplated by this Agreement, the Buyer hereby directs the Seller to, and the Seller agrees that it will deliver in accordance with the Credit Agreement, or cause to be delivered in accordance with the Credit Agreement (on behalf of the Borrower), to the Custodian, as agent and custodian for the Collateral Agent, each Collateral Loan being transferred to the Buyer on such Purchase Date in accordance with the applicable provisions of the Credit Agreement. Each item of Collateral shall be delivered to the Custodian by:
(i) with respect to such of the Collateral as constitutes an instrument, tangible chattel paper, a negotiable document, or money, causing the Custodian to take possession of such instrument indorsed to the Custodian or in blank, or such money, negotiable document, or tangible chattel paper, in the State of New York separate and apart from all other property held by the Custodian;
(ii) with respect to such of the Collateral as constitutes a certificated security in bearer form, causing the Custodian to take possession of the related security certificate in the State of New York;
(iii) with respect to such of the Collateral as constitutes a certificated security in registered form, causing the Custodian to take possession of the related security certificate in the State of New York, indorsed to the Custodian or in blank by an effective indorsement, or registered in the name of the Custodian, upon original issue or registration of transfer by the issuer of such certificated security;
(iv) with respect to such of the Collateral as constitutes an uncertificated security, causing the issuer of such uncertificated security to register the Custodian or its nominee for the account of the Custodian as the registered owner of such uncertificated security;
(v) with respect to such of the Collateral as constitutes a security entitlement, causing the Securities Intermediary to indicate by book entry that the financial asset relating to such security entitlement has been credited to the Custodial Account;
(vi) with respect to such of the Collateral as constitutes a deposit account, causing such deposit account to be established and maintained in the name of the Collateral Agent or the Custodian, as applicable, by a bank the jurisdiction of which for purposes of the UCC is the State of New York; and
(vii) taking such additional or alternative procedures as may hereafter become appropriate to grant a first priority, perfected security interest in such items of the Collateral to the Collateral Agent, consistent with applicable law or regulations. If any item of Collateral is a financial asset issued by an issuer that is not the United States of America, an agency or instrumentality thereof, or some other United States person or entity, and if such item cannot be delivered as set forth above, such item may be delivered by the Collateral Agent holding such item in an account created and maintained in the name of the Collateral Agent with a banking or securities institution or a clearing agency or system located outside the United States such that the Collateral Agent holds a first priority, perfected security interest in such item of Collateral. The BuyerSeller shall record and file (or cause to be recorded or filed) on or before the related Purchase Date all financing statements, and the Seller agrees to record and file (or cause to be recorded or filed) after the related Purchase Date all appropriate financing statements, continuation statements, and other amendments, meeting the requirements of applicable law in such manner and in such jurisdictions as are necessary to perfect and protect the interests of the Collateral Agent and the Secured Parties in the Collateral under the applicable Uniform Commercial Code against all creditors of and purchasers from the Seller. The Seller promptly shall deliver (or cause to be delivered) file-stamped copies of such financing statements, continuation statements, and amendments to the Collateral Agent and the Administrative Agent. The Seller shall also take such action requested by the Buyer or the Administrative Agent, each Lenderfrom time to time hereafter, each Guarantor, that may be necessary or appropriate to ensure that the Backup Servicer Buyer has an enforceable ownership interest and its assigns under the Credit Agreement have an enforceable and perfected security interest in the Collateral Custodian shall not have any obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Sellers (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed Purchased by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer or the Collateral Custodian, and any such assumption is expressly disclaimedBuyer as contemplated by this Agreement.
(f) In connection with the Purchase by the Buyer of the Collateral as contemplated by this Agreement, the Seller further agrees that it will, at its own expense, indicate clearly and unambiguously in its computer files and its financial statements, on or prior to each Purchase of Sale Assets hereunder (other than the initial Purchase)Date, the applicable Seller shall have delivered the Required Receivable File to the that such Collateral Custodian, no later than 2:00 p.m. (I) two (2) Business Days prior to the related Funding Date with respect to Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables included in the Sale Assets on a prior Purchase Date and (II) five (5) Business Days prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be held has been Purchased by the Collateral Custodian Buyer in escrow until such Purchase shall occur on the related Purchase Dateaccordance with this Agreement.
(g) It is The Seller further agrees to deliver to the intention Buyer on or before each Purchase Date a computer file containing a true, complete and correct Loan List (which shall contain the related Principal Balance, outstanding principal balance, loan number and Obligor name for each Collateral Loan) as of the parties hereto that the conveyances of all rightrelated Purchase Date. Such file or list shall be marked as Schedule I to this Agreement, title and interest of the applicable Seller in and to any Sale Assets shall be delivered to the Buyer as provided in this Section 2.1 shall constitute absolute transfers conveying good titleconfidential and proprietary, free and clear of any Lien (other than Permitted Liens) is hereby incorporated into and that the Sale Assets shall not be made a part of the bankruptcy estate of such Seller in the event of an Insolvency Event with respect to such Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables and the other Sale Assets to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any conveyance provided for in this Section 2.1 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”), then this Agreement shall also as such Schedule I may be deemed supplemented and amended from time to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, to and under the related Sale Assets, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets together with all of the other obligations of such Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens)time.
Appears in 1 contract
Samples: Loan Sale and Contribution Agreement (Fifth Street Senior Floating Rate Corp.)
Sale, Transfer and Assignment. (a) On the terms and subject to the conditions set forth in this Agreement (including the conditions to Purchase purchase set forth in Article III), on each Purchase Date, the applicable Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases Purchases and takes from such Seller, the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of such the Seller (including all obligations of the Seller as lender to fund any Delayed Drawdown Collateral Loan conveyed by the Seller to Buyer hereunder which obligations Buyer hereby assumes) in the property identified in clauses (ii)-(v) through (iii) below, whether constituting below and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, softwareaccessions, supporting obligations, accessions or proceeds and other property consisting of, arising out of, or related to any of such Seller, including the following (in each case above and below excluding any the Excluded Amounts and Retained InterestAmounts) (collectively, the “Sale Transferred Assets”):
(i) the Receivables identified Collateral Loans listed on each Loan List delivered by the Seller to the Buyer with respect to such Seller as of any Purchase Date which are listed on Schedule I pursuant to the applicable Sale Assignment, together with this Section 2.1(a) and all monies due or due, to become due or paid in payment under respect of such Receivables Collateral Loans on and after the applicable related Purchase Date, including, including but not limited toto all Collections and other recoveries thereon, all Collectionsin each case as they arise after the related Purchase Date;
(ii) all Related Security Liens with respect to the Receivables Collateral Loans referred to in clause (i) above (except to the extent such Liens are held in a capacity as an administrative agent or collateral agent);
(iii) all guaranties, indemnities and warranties, insurance policies, financing statements and other agreements or arrangements of whatever character from time to time supporting or securing payment of the Collateral Loans referred to in clause (i) above (except to the extent such Liens are held in a capacity as an administrative agent or collateral agent);
(iv) all Related Documents with respect to the Collateral Loans referred to in clause (i) above; and
(iiiv) all income and Proceeds proceeds of the foregoing.
(b) Either the Sellers, on the one hand, or the Buyer, on the other hand, may, in their respective sole discretion at any time after March 30, 2009 terminate this Agreement by delivery of written notice to the non-terminating party (i.e., the Sellers or the Buyer, as the case may be) not less than 30 days prior to the Termination Effective Date.
(c) The applicable Seller shall, on or prior to each Purchase Date, execute and deliver to the Buyer a certificate of assignment (the “Sale Assignment”) in the form of Exhibit A hereto.
(d) Except as specifically provided in this Agreement, the sale and purchase of Sale Assets under this Agreement shall be without recourse to the Sellers; however, it being understood that the applicable Seller shall be liable to the Buyer for all representations, warranties and covenants made by such Seller pursuant to the terms of this Agreement.
(e) The Buyer, the Administrative Agent, each Lender, each Guarantor, the Backup Servicer and the Collateral Custodian shall not have any obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Sellers (including any obligation with respect to any other related agreements)). No such obligation or liability is intended to be assumed by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup Servicer or the Collateral Custodian, and any such assumption is expressly disclaimed.
(f) In connection with each Purchase of Sale Assets hereunder (other than the initial Purchase), the applicable Seller shall have delivered the Required Receivable File to the Collateral Custodian, no later than 2:00 p.m. (I) two (2) Business Days prior to the related Funding Date with respect to Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables included in the Sale Assets on a prior Purchase Date and (II) five (5) Business Days prior to the related Purchase Date with respect to all other Receivables acquired from “Sellers” (as such term is defined in the Credit Agreement) of Receivables not previously included in the Sale Assets. The Required Receivable Files shall be held by the Collateral Custodian in escrow until such Purchase shall occur on the related Purchase Date.
(g) It is the intention of the parties hereto that the conveyances of all right, title and interest of the applicable Seller in and to any Sale Assets to the Buyer as provided in this Section 2.1 shall constitute absolute transfers conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Sale Assets shall not be part of the bankruptcy estate of such Seller in the event of an Insolvency Event with respect to such Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Receivables and the other Sale Assets to the Buyer to secure a debt or other obligation of the applicable Seller. If, however, notwithstanding the intention of the parties, any conveyance provided for in this Section 2.1 is determined by a court of competent jurisdiction or other Governmental Authority to be a transfer for security (an “Inconsistent Determination”), then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the applicable Seller hereby grants to the Buyer a “security interest” within the meaning of Article 9 of the UCC in all of its right, title and interest in, to and under the related Sale Assets, now existing and hereafter created, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of such Sale Assets together with all of the other obligations of such Seller hereunder. The Buyer shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative. In connection herewith, the Buyer shall be permitted to file (at its own expense) protective UCC financing statements necessary for the Buyer to have a perfected security interest in the Sale Assets in the event of an Inconsistent Determination (each a “Protective Filing”). Furthermore, automatically upon an Inconsistent Determination and without any further action by the applicable Seller or the Buyer, or any amendment to this Agreement being required, each representation or warranty by such Seller attesting as to the valid conveyance of Sale Assets shall be deemed to be a representation and warranty that such Seller has granted the Buyer a valid and continuing security interest in the Sale Assets, free and clear of all Liens (except for Permitted Liens).
Appears in 1 contract
Samples: Loan Sale and Contribution Agreement (OFS Capital Corp)
