PURCHASE AND SALE AGREEMENT Dated as of April 11, 2007 Between GSC INVESTMENT FUNDING LLC as Buyer and GSC INVESTMENT CORP. as Seller
EXHIBIT
10.1
EXECUTION
VERSION
Dated
as
of April 11, 2007
Between
GSC
INVESTMENT FUNDING LLC
as
Buyer
and
as
Seller
TABLE
OF CONTENTS
|
ARTICLE
I GENERAL
|
1
|
|
|
Section
1.1
|
Certain
Defined Terms
|
1
|
|
Section
1.2
|
Other
Definitional Provisions
|
2
|
|
ARTICLE
II SALE AND CONVEYANCE
|
3
|
|
|
Section
2.1
|
Sale
|
3
|
|
Section
2.2
|
Assignments,
Etc.
|
4
|
|
ARTICLE
III PURCHASE PRICE AND PAYMENT; MONTHLY REPORT
|
4
|
|
|
Section
3.1
|
Purchase
Price
|
4
|
|
Section
3.2
|
Payment
of Purchase Price
|
5
|
|
ARTICLE
IV REPRESENTATIONS AND WARRANTIES
|
5
|
|
|
Section
4.1
|
Seller’s
Representations and Warranties
|
5
|
|
Section
4.2
|
Representations
and Warranties of the Buyer
|
8
|
|
ARTICLE
V COVENANTS
|
9
|
|
|
Section
5.1
|
Seller
Covenants
|
9
|
|
ARTICLE
VI REPURCHASE OF ORIGINATOR COLLATERAL DEBT OBLIGATIONS
|
13
|
|
|
Section
6.1
|
Mandatory
Repurchase of Ineligible Collateral Debt Obligations
|
13
|
|
ARTICLE
VII CONDITIONS PRECEDENT
|
14
|
|
|
Section
7.1
|
Conditions
to the Buyer’s Obligations Regarding Originator Collateral Debt
Obligations
|
14
|
|
ARTICLE
VIII TERM AND TERMINATION
|
14
|
|
|
Section
8.1
|
Termination
|
14
|
|
ARTICLE
IX MISCELLANEOUS PROVISIONS
|
15
|
|
|
Section
9.1
|
Amendment
|
15
|
|
Section
9.2
|
Governing
Law
|
15
|
|
Section
9.3
|
Notices
|
15
|
|
Section
9.4
|
Severability
of Provisions
|
16
|
|
Section
9.5
|
Assignment
|
16
|
|
Section
9.6
|
Further
Assurances
|
17
|
|
Section
9.7
|
No
Waiver; Cumulative Remedies
|
17
|
|
Section
9.8
|
Counterparts
|
17
|
|
Section
9.9
|
Binding
Effect; Third-Party Beneficiaries
|
17
|
|
Section
9.10
|
Merger
and Integration
|
18
|
|
Section
9.11
|
Headings
|
18
|
|
Section
9.12
|
Schedules
and Exhibits
|
18
|
|
Section
9.13
|
Merger,
Consolidation or Assumption of Obligations of the Seller
|
18
|
|
Section
9.14
|
Costs,
Expenses and Taxes
|
19
|
|
Section
9.15
|
Indemnities
by Seller
|
19
|
|
Section
9.16
|
Recourse
Against Certain Parties
|
21
|
Schedule
I Schedule
of Collateral Debt Obligations
Schedule
II Tradenames,
Fictitious Names and “Doing Business As” Names
Exhibit
A Form
of
Assignment
PURCHASE
AND SALE AGREEMENT, dated as of April 11, 2007 by and between GSC INVESTMENT
CORP., a Maryland corporation, as seller (the “Seller”),
and
GSC INVESTMENT FUNDING LLC, a Delaware limited liability company, as buyer
(the
“Buyer”).
W I T N E S S E T H:
WHEREAS,
the Buyer desires to purchase from the Seller and the Seller desires to sell
to
the Buyer certain securities and loans originated or purchased by the Seller
in
its normal course of business, together with, among other things, the related
rights of payment thereunder and the interest of the Seller in the related
property and other interests securing the payments to be made under such
securities and loans.
NOW,
THEREFORE, it is hereby agreed by and between the Buyer and the Seller as
follows:
ARTICLE I
GENERAL
| Section 1.1 |
Certain
Defined Terms.
|
Certain
capitalized terms used throughout this Agreement (as defined hereunder) are
defined above or in this Section
1.1.
In
addition, capitalized terms used but not defined herein have the meanings,
mutatis
mutandis,
given to
such terms in the Credit Agreement (as defined hereunder).
“Agreement”
means
this Purchase and Sale Agreement, as the same shall be amended, supplemented,
restated or modified from time to time.
“Buyer”
is
defined in preamble.
“Credit
Agreement”
means
that certain Credit Agreement, dated as of April 11, 2007, by and among the
Buyer, as borrower thereunder, GSCP (NJ), L.P., as Servicer, GSC Investment
Corp., as Performance Guarantor, the “Lenders” and “Managing Agents” from time
to time party thereto and Deutsche Bank AG, New York Branch as administrative
agent, as the same may be amended, supplemented, restated or modified from
time
to time.
“Eligible
Collateral Debt Obligation”
means
on
any date of determination, an Originator Collateral Debt Obligation which
satisfies the requirements of a “Collateral Debt Obligation” as defined in the
Credit Agreement.
“Ineligible
Collateral Debt Obligation”
is
defined in Section
6.1.
“Originator
Collateral Debt Obligation”
means
any security or loan offered for sale by the Originator to the Buyer pursuant
to
this Agreement.
“Purchase”
means
any transfer made hereunder pursuant to Section
2.1.
“Purchase
Date”
means
any Business Day on which any Originator Collateral Debt Obligation is acquired
by the Buyer pursuant to the terms of this Agreement.
“Purchase
Price”
is
defined in Section
3.1.
“Purchased
Collateral Debt Obligation”
means
any security or loan sold or purported to be sold by the Originator to the
Buyer
pursuant to this Agreement.
“Repurchase
Price”
means,
for any Ineligible Collateral Debt Obligation repurchased by the Seller pursuant
to Section
6.1,
an
amount equal to (x) the original Purchase Price in respect of such Originator
Collateral Debt Obligation plus
(y) all
accrued and unpaid interest on such Originator Collateral Debt Obligation
minus
(z) all
Collections received by the Buyer (or its assigns) in respect of such Originator
Collateral Debt Obligation.
“Sale
Documents:
is
defined in Section
4.1(c).
“Schedule
of Collateral Debt Obligations”
is
defined in Section
2.1(b).
“Seller”
is
defined in the preamble.
“Substitute
Collateral Debt Obligation”
means
any Eligible Collateral Debt Obligation which is substituted for an Ineligible
Collateral Debt Obligation pursuant to Section
6.1,
which
satisfies each of the following conditions: (a) the aggregate Outstanding
Principal Balance of such Eligible Collateral Debt Obligation shall be equal
to
or greater than the Outstanding Principal Balance of the Originator Collateral
Debt Obligation to be replaced; (b) all representations and warranties of the
Seller contained in Section
4.1
shall be
true and correct as of the Substitution Date of any such Substitute Collateral
Debt Obligation and (c) the substitution of any Substitute Collateral Debt
Obligation does not cause an Amortization Event, Default or Event of Default
to
occur under the Credit Agreement.
“Substitution
Date”
means
any date on which the Seller transfers a Substitute Collateral Debt Obligation
to the Buyer.
| Section 1.2 |
Other
Definitional Provisions.
|
The
words
“hereof,” “herein” and “hereunder” and words of similar import when used in this
Agreement or any Sale Document shall refer to this Agreement as a whole and
not
to any particular provision of this Agreement; and Section, Subsection, Schedule
and Exhibit references contained in this Agreement are references to Sections,
Subsections, Schedules and Exhibits in or to this Agreement unless otherwise
specified.
In
the
event that any term or provision contained herein shall conflict with or be
inconsistent with any term or provision contained in the Credit Agreement,
the
terms and provisions contained herein shall govern with respect to this
Agreement.
2
ARTICLE II
SALE
AND CONVEYANCE
| Section 2.1 |
Sale.
|
(a) On
each
Purchase Date, the Seller will sell, transfer, assign and set over and otherwise
convey to the Buyer and the Buyer will purchase from the Seller, without
recourse, all right, title and interest of the Seller in, to and under the
following property, whether now existing or hereafter created or
acquired:
(i) the
Originator Collateral Debt Obligations identified on the applicable Schedule
of
Collateral Debt Obligations delivered by the Seller to the Buyer at least one
(1) Business Day before the requested Purchase Date, together with all monies
due or to become due in payment of such Originator Collateral Debt Obligations
on and after such Purchase Date;
(ii) the
Related Property securing such Originator Collateral Debt Obligations, including
all Proceeds from any sale or other disposition of such Related
Property;
(iii) the
Collateral Debt Obligation Documents related to such Originator Collateral
Debt
Obligations;
(iv) all
Collections and all other payments made or to be made in the future with respect
to such Originator Collateral Debt Obligations or by the Obligor thereunder
and
under any guarantee or similar credit enhancement with respect to such
Originator Collateral Debt Obligations; and
(v) all
income
and Proceeds of the foregoing.
(b) The
Seller
further agrees to deliver to the Buyer a computer file or microfiche list
containing a true and complete list of all Originator Collateral Debt
Obligations, identified by account number and Outstanding Obligation Balance
as
of each Purchase Date (as supplemented or modified from time to time in
accordance with the provisions hereof, the “Schedule
of Collateral Debt Obligations”).
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.
(c) In
connection with the sale of the Originator Collateral Debt Obligations, 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,
that such Originator Collateral Debt Obligations have been sold to the Buyer
pursuant to this Agreement.
(d) It
is the
intention of the parties hereto that the conveyance of the Originator Collateral
Debt Obligations by the Seller to the Buyer as provided in this Section
2.1
be, and
be construed as, an absolute sale, without recourse, of the Originator
Collateral Debt Obligations by the Seller to the Buyer. Furthermore, it is
not
intended that such conveyance be deemed a pledge of the Originator Collateral
Debt Obligations by the Seller to the Buyer to secure a debt or other obligation
of the Seller. If, however, notwithstanding the intention of the parties, the
conveyance
3
provided
for in this Section
2.1
is
determined, for any reason, not to be an absolute sale, then the parties intend
that this Agreement shall be deemed to be a “security agreement” within the
meaning of Article 9 of the UCC and the Seller hereby grants to the Buyer a
“security interest” within the meaning of Article 9 of the UCC in all of the
Seller’s right, title and interest in and to the property enumerated in
clause
(a)
above,
now existing and hereafter created, in an amount equal to the aggregate Purchase
Price and each of the Seller’s other payment obligations under this
Agreement.
| Section 2.2 |
Assignments,
Etc.
|
(a) The
Seller
shall, on or prior to any Purchase Date with respect to the Originator
Collateral Debt Obligations, execute and deliver to the Buyer a written
assignment from Seller to the Buyer substantially in the form of Exhibit
A
hereto.
From and after such Purchase Date, such Originator Collateral Debt Obligations
and related interests and property shall be deemed to be part of the Purchased
Collateral Debt Obligations hereunder.
(b) Covenants
of the Seller In Connection With Additions.
On or
before any Purchase Date with respect to any Originator Collateral Debt
Obligations to be acquired by the Buyer, the Seller shall:
(i) be
deemed
to represent and warrant as follows: (A) each such Originator Collateral Debt
Obligation was, as of the related Purchase Date, an Eligible Collateral Debt
Obligation, (B) no selection procedures believed by the Seller to be adverse
to
the interest of the Buyer were utilized in selecting such Originator Collateral
Debt Obligations from the available securities and loans in the Seller’s
portfolio and (C) as of the related Purchase Date, (x) no Insolvency Event
with
respect to the Seller has occurred, and (y) the sale of such Originator
Collateral Debt Obligations to the Buyer has not been made in contemplation
of
the occurrence of any Insolvency Event with respect to the Seller;
and
(ii) ensure
that all financing statements or other similar instruments or documents
necessary under the UCC (or any comparable law) of all appropriate jurisdictions
to perfect Buyer’s ownership interest in the Originator Collateral Debt
Obligations have been duly filed.
ARTICLE
III
PURCHASE
PRICE AND PAYMENT; MONTHLY REPORT
| Section 3.1 |
Purchase
Price.
|
The
purchase price for each Originator Collateral Debt Obligation sold to the Buyer
by the Seller under this Agreement (the “Purchase
Price”)
shall
be the fair market value thereof as determined by the Buyer and Seller, which
may be the Seller’s acquisition cost (if recently acquired) or may be the
outstanding principal balance of such Originator Collateral Debt Obligation
plus
any accrued interest thereon (each, calculated as of such Purchase Date),
adjusted, if at all, for the collectability thereof, the interest rate charged
with respect thereto, and
4
the
anticipated cost of funding such purchase and shall be determined and fixed
prior to such purchase.
| Section 3.2 |
Payment
of Purchase Price.
|
(a) The
Purchase Price shall be paid by the Buyer on each related Purchase Date in
cash
or, at the option of the Seller, if the Buyer does not have sufficient cash
to
pay the full amount of the Purchase Price, by means of a capital contribution
by
the Seller to the Buyer.
(b) All
cash
payments in respect of the Purchase Price of any Originator Collateral Debt
Obligation sold hereunder shall be made not later than 3:30 p.m. (New York
City
time) on the date specified therefor in lawful money of the United States in
same day funds by depositing such amounts in the bank account designated in
writing by the Seller to the Buyer.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
| Section 4.1 |
Seller’s
Representations and Warranties.
|
The
Seller
hereby represents and warrants to the Buyer, as of the Closing Date and each
Purchase Date, that:
(a) Organization
and Good Standing.
The
Seller is a Maryland corporation duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its formation, and has full
power, authority and legal right to own or lease its properties and conduct
its
business as such business is presently conducted.
(b) Due
Qualification.
The
Seller is qualified to do business as a corporation, is in good standing, and
has obtained all licenses and approvals as required under the laws of all
jurisdictions in which the ownership or lease of its property or the conduct
of
its business (other than the performance of its obligations hereunder) requires
such qualification, standing, license or approval, except to the extent that
the
failure to so qualify, maintain such standing or be so licensed or approved
would not have an adverse effect on the interests of the Buyer. The Seller
is
qualified to do business as a corporation, is in good standing, and has obtained
all licenses and approvals as required under the laws of all states in which
the
performance of its obligations pursuant to this Agreement requires such
qualification, standing, license or approval and where the failure to qualify
or
obtain such license or approval would have a Material Adverse Effect on its
ability to perform hereunder or under any other Sale Document.
(c) Due
Authorization.
The
execution and delivery of and performance under this Agreement and each other
document or instrument to be delivered by the Seller hereunder or in connection
herewith (collectively, the “Sale
Documents”),
and
the consummation of the transactions provided for herein and therein have been
duly authorized by the Seller by all necessary action on the part of the
Seller.
(d) No
Conflict.
The
execution and delivery of this Agreement and each of the Sale Documents, the
performance by the Seller of the transactions contemplated hereby and
thereby
5
and
the
fulfillment of the terms hereof and thereof will not conflict with, result
in
any breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under the Seller’s bylaws or any
material Contractual Obligation of the Seller.
(e) No
Violation.
The
execution and delivery of this Agreement and each of the Sale Documents, the
performance of the transactions contemplated hereby and thereby and the
fulfillment of the terms hereof and thereof will not conflict with or violate
any Applicable Law in a manner that could reasonably be expected to have a
Material Adverse Effect.
(f) No
Proceedings.
There
are no proceedings or investigations pending or, to the best knowledge of the
Seller, threatened against the Seller, before any Governmental Authority (i)
asserting the invalidity of this Agreement or any of the Sale Documents, (ii)
seeking to prevent the consummation of any of the transactions contemplated
by
this Agreement or any of the Sale Documents or (iii) seeking any determination
or ruling that could reasonably be expected to have a Material Adverse
Effect.
(g) All
Consents Required.
All
material approvals, authorizations, consents, orders or other actions of any
Person or of any Governmental Authority (if any) required in connection with
the
due execution, delivery and performance by the Seller of this Agreement and
the
Sale Documents have been obtained.
(h) Reports
Accurate.
No
report, information, exhibit, financial statement, document, book, record or
report, whether written, verbal or electronic, furnished by the Seller to the
Buyer in connection with this Agreement is or was inaccurate in any material
respect as of the date it is or was dated or as of the date so
furnished.
(i) Solvency.
The
transactions contemplated under this Agreement and each Sale Document do not
and
will not render the Seller not Solvent.
(j) Selection
Procedures.
No
procedures believed by the Seller to be materially adverse to the interests
of
the Buyer were utilized by the Seller in identifying and/or selecting the
Originator Collateral Debt Obligations to be sold, assigned, transferred,
set-over and otherwise conveyed hereunder.
(k) Taxes.
The
Seller has filed or caused to be filed all Tax returns required to be filed
by
it. The Seller has paid all Taxes and all assessments made against it or any
of
its property (other than any amount of Tax the validity of which is currently
being contested in good faith by appropriate proceedings and with respect to
which reserves in accordance with GAAP have been provided on the books of the
Seller), and no Tax lien has been filed and, to the Seller’s knowledge, no claim
is being asserted, with respect to any such Tax, fee or other
charge.
(l) Agreements
Enforceable.
This
Agreement and each Sale Document constitutes the legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance with
their respective terms, except as such enforceability may be limited by
Insolvency Laws and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in
equity).
6
(m) No
Liens.
Each
Originator Collateral Debt Obligation is, immediately prior to the sale
hereunder to the Buyer, owned by the Seller free and clear of any Liens and
upon
the sale, transfer or assignment hereunder, the Buyer shall acquire absolute
title to and valid ownership of each such Originator Collateral Debt Obligation,
free and clear of any Lien (other than Permitted Liens) and no effective
financing statement or other instrument similar in effect covering any
Originator Collateral Debt Obligation shall at any time be on file in any
recording office except such as may be filed in favor of the Buyer (or the
Administrative Agent, as Buyer’s assignee) in accordance with the terms of this
Agreement or the Credit Agreement.
(n) Security
Interest.
As
described in Section
2.1(d)
hereof,
it is the intention of the parties hereto that the conveyance of the
Originator
Collateral
Debt Obligations by the Seller to the Buyer be, and be construed as an absolute
sale without recourse. If, however, notwithstanding the intention of the
parties, such conveyance is determined for any reason not to be an absolute
sale, the Seller grants a security interest (as defined in the UCC) to the
Buyer
in the property enumerated in Section
2.1(a),
which is
enforceable in accordance with the UCC upon execution and delivery of this
Agreement. Upon the filing of UCC-1 financing statements naming the Buyer as
purchaser/secured party and the Seller as seller/debtor, the Buyer shall have
a
first priority perfected security interest in such property. All filings
(including, without limitation, such UCC filings) as are necessary in any
jurisdiction to perfect the interest of the Buyer in such property have been
made.
(o) Location
of Offices.
The
Seller’s principal place of business and chief executive office and the office
where the Seller keeps all the Records is located at the address of the Seller
referred to in Schedule
II hereto
(or at
such other locations as to which the notice and other requirements specified
in
Section
5.1(g)
shall
have been satisfied).
(p) Other
Names.
The
legal name of the Seller is as set forth in this Agreement and within the
preceding five years the Seller has not used, and the Seller currently does
not
use, any tradenames other than those set forth on Schedule II hereto.
(q) Value
Given.
The
Purchase Price received by the Seller for each Purchased Collateral Debt
Obligation under this Agreement constitutes reasonably equivalent value therefor
and the transfer by the Seller thereof to the Buyer was not made for or on
account of an antecedent debt owed by the Seller to the Buyer, and such transfer
was not and is not voidable or subject to avoidance under any Insolvency
Law.
(r) Accounting.
The
Seller will account for the transfers by it to the Buyer of interests in
Purchased Collateral Debt Obligations under this Agreement as sales of such
Purchased Collateral Debt Obligations in its books, records and financial
statements (although the financial statements of the Seller and Buyer may be
consolidated), in each case consistent with GAAP.
(s) Separate
Entity.
The
Seller is operated as an entity with assets and liabilities distinct from those
of the Buyer and any Affiliates thereof, and the Seller hereby acknowledges
that
the Administrative Agent and the Secured Party under the Credit Agreement are
entering into the transactions contemplated by the Credit Agreement in reliance
upon the Seller’s identity as a separate legal entity from the Buyer and from
each such Affiliate of the Buyer.
7
(t) ERISA.
The
Seller is in compliance in all material respects with all applicable provisions
of ERISA and has not incurred and does not expect to incur any liabilities
(except for premium payments arising in the ordinary course of business) payable
to the Pension Benefit Guaranty Corporation under ERISA.
(u) Investment
Company Act.
(i)
The
Seller is registered as a “business development company” within the meaning of
the Investment Company Act of 1940, as amended (the “1940
Act”);
and
(ii) The
business and other activities of the Seller do not now and will not at any
time
result in any violations, with respect to the Seller, of the provisions of
the
1940 Act or any rules, regulations or orders issued by the SEC
thereunder.
(v) Government
Regulations.
The
Seller is not engaged in the business of extending credit for the purpose of
“purchasing” or “carrying” any “margin security,” as such terms are defined in
Regulation U of the Federal Reserve Board as now and from time to time hereafter
in effect. No portion of the proceeds of the sale of Original Collateral Debt
Obligations hereunder will be used, directly or indirectly, for the purpose
of
purchasing or carrying any Margin Stock, for the purpose of reducing or retiring
any indebtedness that was originally incurred to purchase or carry any Margin
Stock or for any other purpose that might cause any portion of such proceeds
to
be considered a “purpose credit” within the meaning of Regulation T, U or X of
the Federal Reserve Board. The Seller will not take or permit to be taken any
action that might cause any Sale Document to violate any regulation of the
Federal Reserve Board.
(w) Eligibility
of Originator
Collateral Debt Obligations.
As of
the Closing Date and each subsequent Purchase Date, the Schedule of Collateral
Debt Obligations delivered on such date is a complete and accurate listing
in
all material respects of all the Originator Collateral Debt Obligations
transferred hereunder as of such date, and the information contained therein
with respect to the identity of such Originator Collateral Debt Obligations
and
the amounts owing thereunder is true and correct in all material respects as
of
such date. As of (i) the Closing Date all Originator Collateral Debt Obligations
will satisfy the requirements set forth in the definition of “Eligible
Collateral Debt Obligation” as of such date and (ii) each Purchase Date, any
additional Originator Collateral Debt Obligation added to such Schedule of
Collateral Debt Obligations will satisfy the requirements set forth in the
definition of “Eligible Collateral Debt Obligation” as of such
date.
The
representations and warranties set forth in this Section
4.1
shall
survive the sale, transfer and assignment of the Originator Collateral Debt
Obligations to the Buyer. Upon discovery by the Seller or the Buyer of a breach
of any of the foregoing representations and warranties, the party discovering
such breach shall give prompt written notice thereof to the other immediately
upon obtaining knowledge of such breach.
| Section 4.2 |
Representations
and Warranties of the Buyer.
|
The
Buyer
hereby represents and warrants to the Seller, as of the Closing Date and each
Purchase Date, that:
8
(a) Organization
and Good Standing.
The
Buyer is a Delaware limited liability company duly organized, validly existing,
and in good standing under the laws of the jurisdiction of its formation, and
has full power, authority and legal right to own or lease its properties and
conduct its business as such business is presently conducted.
(b) Due
Qualification.
The
Buyer is duly qualified to do business and is in good standing as a limited
liability company, and has obtained or will obtain all necessary licenses and
approvals, in each jurisdiction in which the nature of its business requires
it
to be so qualified.
(c) Due
Authorization.
The
execution and delivery of this Agreement and the consummation of the
transactions provided for herein have been duly authorized by the Buyer by
all
necessary action on the part of the Buyer.
(d) No
Conflict.
The
execution and delivery of this Agreement, the performance by the Buyer of the
transactions contemplated hereby and the fulfillment of the terms hereof will
not conflict with or result in any breach of any of the terms and provisions
of,
and will not constitute (with or without notice or lapse of time or both) a
default under, the Buyer’s limited liability company agreement.
(e) No
Violation.
The
execution and delivery of this Agreement, the performance of the transactions
contemplated hereby and the fulfillment of the terms hereof will not conflict
with or violate, in any material respect, any requirements of laws applicable
to
the Buyer.
(f) No
Proceedings.
There
are no proceedings or investigations pending or, to the best knowledge of the
Buyer, threatened against the Buyer, before any court, regulatory body,
administrative agency, or other tribunal or Governmental Authority (i) asserting
the invalidity of this Agreement, (ii) seeking to prevent the consummation
of
any of the transactions contemplated by this Agreement, or (iii) seeking any
determination or ruling that could reasonably be expected to be adversely
determined which would, if adversely determined, materially and adversely affect
the performance by the Buyer of its obligations under this
Agreement.
ARTICLE V
COVENANTS
| Section 5.1 |
Seller
Covenants.
|
The
Seller
hereby covenants that:
(a) Compliance
with Laws.
The
Seller will comply with all Applicable Laws with respect to it, its business,
and properties and all Originator Collateral Debt Obligations and the Related
Property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
(b) Preservation
of Corporate Existence.
The
Seller will preserve and maintain its existence, rights, franchises and
privileges in the jurisdiction of its formation, and qualify and remain
qualified in good standing in each jurisdiction where the failure to maintain
such
9
existence,
rights, franchises, privileges and qualification has had, or could reasonably
be
expected to have, a Material Adverse Effect on its ability to perform its
obligations hereunder or under the Sale Documents.
(c) Security
Interests.
Except
as contemplated in this Agreement, the Seller will not sell, pledge, assign
or
transfer to any other Person, or grant, create, incur, assume or suffer to
exist
any Lien on any Purchased Collateral Debt Obligation. The Seller will promptly
notify the Buyer of the existence of any Lien on any Purchased Collateral Debt
Obligation and the Seller shall defend the right, title and interest of the
Buyer and its assignees in, to and under the Purchased Collateral Debt
Obligations, against all claims of third parties, provided,
however,
that
nothing in this Section
5.1(c)
shall
prevent or be deemed to prohibit the Seller from suffering to exist Permitted
Liens upon any Purchased Collateral Debt Obligation.
(d) Delivery
of Collections.
Consistent with the Buyer’s ownership of the Purchased Collateral Debt
Obligations, in the event the Seller shall receive any Collections in respect
of
any Purchased Collateral Debt Obligations, the Seller agrees to promptly pay
to
the Buyer, or an account designated by the Buyer, (but in no event later than
two Business Days after receipt) such Collections. Further, on or before the
related Purchase Date for any Purchased Collateral Debt Obligation, the Seller
shall instruct the applicable Obligors or payment agents for the Purchased
Collateral Debt Obligations to make payments in respect of such Purchased
Collateral Debt Obligations to the Collection Account.
(e) Merger;
Sales.
The
Seller shall not enter into any transaction of merger or consolidation, or
liquidate or dissolve itself (or suffer any liquidation or dissolution), or,
subject to Section
9.13,
be
acquired by any Person, or convey, sell, lease or otherwise dispose of all
or
substantially all of its property or business, except as provided for in this
Agreement.
(f) Separate
Existence.
The
Seller shall take all actions required to maintain the Buyer’s status as a
separate legal entity, including, without limitation, (i) not holding the Buyer
out to third parties as an entity other than an entity with assets and
liabilities distinct from the Seller and the Seller’s Affiliates; (ii) not
holding itself out to be responsible for any Indebtedness or other liability
of
the Buyer or, other than by reason of owning equity interests of the Buyer,
for
any decisions or actions relating to the Buyer; (iii) preparing separate
financial statements for the Buyer; (iv) taking such other actions as are
necessary on its part to ensure that all corporate procedures required by its
and the Buyer’s respective constituent documents are duly and validly taken; (v)
keeping correct and complete records and books of account and minutes; and
(vi)
not acting in any manner that could foreseeably mislead others with respect
to
the Buyer’s separate identity. In addition to the foregoing, the Seller shall
take the following actions:
(i) The
Seller
shall maintain corporate records, books of account, deposit accounts, and
accounts separate from those of the Buyer.
(ii) The
Seller
shall maintain a principal executive office and administrative office through
which its business is conducted separate from those of the Buyer. To the extent
that the Seller and the Buyer have offices in the same location, there shall
be
a fair and appropriate allocation of overhead costs among them, and each such
entity shall bear its fair share of such expenses.
10
(iii) The
resolutions, agreements and other instruments underlying the transactions
described in this Agreement shall be continuously maintained by the Seller
as
official records.
(iv) The
Seller
shall ensure that all material transactions between the Seller and the Buyer
shall be only on an arm’s-length basis.
(v) The
Seller
shall keep its assets and its liabilities wholly separate from those of the
Buyer.
(vi) The
Seller
shall not mislead third parties by conducting or appearing to conduct business
on behalf of Buyer or expressly or impliedly representing or suggesting that
the
Seller is liable or responsible for any Indebtedness of the Buyer or that the
assets of the Seller are available to pay the creditors of the
Buyer.
(vii) The
Seller
shall at all times have stationery and other business forms and a mailing
address and telephone number separate from those of the Buyer.
(viii) The
Seller
shall at all times limit its transactions with the Buyer only to those expressly
permitted under this Agreement, the Buyer’s limited liability company agreement
or any Sale Document.
(ix) The
Seller
shall take or refrain from taking, as applicable, each of the activities
specified or assumed in the MBRM Opinion, upon which the conclusions expressed
therein are based.
(x) The
Seller
shall ensure that, to the extent that it shares the same persons as officers
or
other employees as the Buyer, the salaries of and the expenses related to
providing benefits to such officers or employees shall be fairly allocated
among
the two entities, and each entity shall bear its fair share of the salary and
benefit costs associated with all such common officers and
employees.
(xi) The
Seller
shall ensure that, to the extent that it jointly contracts with the Buyer to
do
business with vendors or service providers or to share overhead expenses, the
costs incurred in so doing shall be allocated fairly among such entities, and
each such entity shall bear its fair share of such costs. To the extent that
the
Borrower contracts or does business with vendors or service providers when
the
goods and services provided are partially for the benefit of any other person,
the costs incurred in so doing shall be fairly allocated to or among such
entities for whose benefit the goods and services are provided, and each such
entity shall bear its fair share of such costs.
(g) Change
of Name or Jurisdiction of Seller; Records.
The
Seller (a) shall not change its name or jurisdiction of incorporation, without
30 days’ prior written notice to the Buyer and the Administrative Agent; and (b)
shall not move the location of Collateral Debt Obligation Files from the
locations thereof on the applicable Purchase Date (except as permitted pursuant
to the Credit Agreement), without 30 days’ prior written notice to the Buyer and
the Administrative Agent.
11
(h) ERISA
Matters.
The
Seller will not, if individually or in the aggregate, the following could
reasonably be expected to have a Material Adverse Effect (a) engage or permit
any ERISA Affiliate to engage in any prohibited transaction for which an
exemption is not available or has not previously been obtained from the United
States Department of Labor; (b) permit to exist any accumulated funding
deficiency, as defined in Section 302(a) of ERISA and Section 412(a) of the
Code, or funding deficiency with respect to any Benefit Plan other than a
Multiemployer Plan; (c) fail to make any payments to a Multiemployer Plan that
the Seller or any ERISA Affiliate may be required to make under the agreement
relating to such Multiemployer Plan or any law pertaining thereto; (d) terminate
any Benefit Plan so as to result in any liability; or (e) permit to exist any
occurrence of any reportable event described in Title IV of ERISA that
represents a material risk of a liability of the Seller under ERISA or the
Code.
(i) Extension
or Amendment of Purchased Collateral Debt Obligations.
The
Seller will not extend, amend or otherwise modify, the terms of any Purchased
Collateral Debt Obligation in a manner inconsistent with the Borrower’s
obligations to its assignees pursuant to the Credit Agreement.
(j) Reporting.
The
Seller will maintain, for itself and each of its Affiliates, a system of
accounting established and administered in accordance with GAAP, and furnish
or
cause to be furnished to the Administrative Agent and the Managing
Agents:
(i) Annual
Reporting.
Within
120 days after the close of each of the Seller’s fiscal years, unaudited
financial statements (which shall include balance sheets, statements of income
and retained earnings and a statement of cash flows) for such fiscal year,
all
certified by a Responsible Officer of the Seller as fairly presenting in all
material respects the financial condition, results of operations and cash flows
of the Seller in accordance with GAAP.
(ii) Quarterly
Reporting.
Within
60 days after the close of the first three (3) quarterly periods of each of
the
Seller’s fiscal years, balance sheets of the Seller as at the close of each such
period and statements of income and retained earnings and a statement of cash
flows for the Seller for the period from the beginning of such fiscal year
to
the end of such quarter, all certified by a Responsible Officer of the Seller
as
fairly presenting in all material respects the financial condition, results
of
operations and cash flows of the Seller in accordance with GAAP.
(k) Subordination
Events.
The
Seller will not engage or permit any Affiliate to engage in any activities
relating to any Obligor and/or with respect to any Purchased Collateral Debt
Obligation that would subject a Purchased Collateral Debt Obligation to the
risk
of (i) equitable subordination under Section 510(c) of the Bankruptcy Code,
or
(ii) recharacterization as an equity security under Section 105(a) of the
Bankruptcy Code or otherwise, as a result of the conduct of the Seller, the
Servicer, the Investment Manager, the Buyer or any of their respective
Affiliates.
(l) Ratings.
The
Seller will ensure that each Originator Collateral Debt Obligation shall have
as
of its Purchase Date a Xxxxx’x Rating; provided,
that
if any
Originator Collateral Debt Obligation does not have a Moody’s Assigned Rating or
an assigned Moody’s Shadow
12
Rating
as of its Purchase Date, the Seller shall take any reasonable action requested
by the Buyer (or the Servicer, on its behalf) with regards to the application
or
any re-application for a Xxxxx’x Rating or a Moody’s Shadow Rating
(as
the Buyer or the Servicer, on its behalf, deems appropriate in its reasonable
judgment), and shall pay any costs associated with such application or
re-application, as the case may be.
(m) Change
in Payment Instructions to Obligor.
The
Seller shall not make any change in its instructions to the Obligors or payment
agents regarding payments on Purchased Collateral Debt Obligations to be made
to
the Collection Account, unless the Administrative Agent shall have given its
prior written consent to such change.
ARTICLE
VI
REPURCHASE
OF ORIGINATOR COLLATERAL DEBT OBLIGATIONS
| Section 6.1 |
Mandatory
Repurchase of Ineligible Collateral Debt
Obligations.
|
(a) In
the
event of a breach of any representation or warranty set forth in Section 4.1
with
respect to a Purchased Collateral Debt Obligation (each such Purchased
Collateral Debt Obligation, an “Ineligible
Collateral Debt Obligation”),
no
later than 10 days after the earlier of (i) knowledge of such breach on the
part
of the Seller and (ii) receipt by the Seller of written notice thereof given
by
the Buyer, the Seller shall either (a) repurchase each such Ineligible
Collateral Debt Obligation, or (b) substitute for such Ineligible Collateral
Debt Obligation a Substitute Collateral Debt Obligation; provided,
however,
that no
such repurchase shall be required to be made with respect to such Ineligible
Collateral Debt Obligation (and such Purchased Collateral Debt Obligation shall
cease to be an Ineligible Collateral Debt Obligation) if, on or before the
expiration of such 10-day period, the representations and warranties in
Section
4.1
with
respect to such Ineligible Collateral Debt Obligation shall be made true and
correct in all material respects with respect to such Ineligible Collateral
Debt
Obligation as if such Ineligible Collateral Debt Obligation had been transferred
to the Buyer on such day.
(b) Upon
the
Buyer’s receipt of the Repurchase Price or a Substitute Collateral Debt
Obligation, as applicable, for an Ineligible Collateral Debt Obligation, the
Buyer shall automatically and without further action be deemed to transfer,
assign and set-over to the Seller all the right, title and interest of the
Buyer
in, to and under such Ineligible Collateral Debt Obligation and all monies
due
or to become due with respect thereto, all proceeds thereof and all rights
to
security for any such Ineligible Collateral Debt Obligation, and all proceeds
and products of the foregoing, free and clear of any Lien created pursuant
to
this Agreement or the Credit Agreement, all of the Buyer’s right, title and
interest in such Ineligible Collateral Debt Obligation.
(c) The
Buyer
shall, at the sole expense of the Seller, execute such documents and instruments
of transfer as may be prepared by the Seller and take such other actions as
shall reasonably be requested by the Seller to effect the transfer of such
Ineligible Collateral Debt Obligation pursuant to this Section
6.1.
13
ARTICLE
VII
CONDITIONS
PRECEDENT
| Section 7.1 |
Conditions
to the Buyer’s Obligations Regarding Originator Collateral Debt
Obligations.
|
The
obligations of the Buyer to purchase Originator Collateral Debt Obligations
from
the Seller on any Purchase Date shall be subject to the satisfaction of the
following conditions:
(a) all
representations and warranties of the Seller contained in Section
4.1
shall be
true and correct in all material respects on and as of such day as though made
on and as of such date;
(b) on
and as
of such day, the Seller shall have performed all obligations required to be
performed by it on or prior to such day pursuant to the provisions of this
Agreement;
(c) no
event
has occurred and is continuing, or would result from such purchase that
constitutes an Amortization Event, a Default or an Event of Default;
and
(d) no
law or
regulation shall prohibit, and no order, judgment or decree of any federal,
state or local court or governmental body, agency or instrumentality shall
prohibit or enjoin, the making of any such purchase by the Buyer in accordance
with the provisions hereof.
ARTICLE
VIII
TERM
AND TERMINATION
| Section 8.1 |
Termination.
|
This
Agreement shall commence as of the date of execution and delivery hereof and
shall continue in full force and effect until the later of (i) the occurrence
of
the Collection Date pursuant to the Credit Agreement and (ii) the date specified
by either party upon 90 days’ prior written notice to the other party as the
termination date; provided,
however,
that the
termination of this Agreement pursuant to this Section
8.1
shall not
discharge any Person from obligations incurred prior to any such termination
of
this Agreement, including, without limitation, any obligations to repurchase
Ineligible Collateral Debt Obligations sold prior to such termination pursuant
to Section
6.1.
14
ARTICLE
IX
MISCELLANEOUS
PROVISIONS
| Section 9.1 |
Amendment.
|
This
Agreement and the rights and obligations of the parties hereunder may not be
amended, waived or changed orally, but only by an instrument in writing signed
by the Buyer and the Seller. The Buyer shall provide not less than ten (10)
Business Days prior written notice of any such amendment to the Administrative
Agent.
| Section 9.2 |
Governing
Law.
|
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO HEREBY AGREES TO THE
JURISDICTION OF ANY FEDERAL COURT LOCATED WITHIN THE STATE OF NEW YORK. EACH
OF
THE PARTIES HERETO HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS,
AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE
AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
| Section 9.3 |
Notices.
|
All
notices and other communications provided for hereunder shall, unless otherwise
stated herein, be in writing (including telex communication and communication
by
facsimile copy) and mailed, telexed, transmitted or delivered, as to each party
hereto, at its address set forth below or at such other address as shall be
designated by such party in a written notice to the other party hereto. All
such
notices and communications shall be effective upon receipt, or in the case
of
(a) notice by mail, five days after being deposited in the United States mail,
first class postage prepaid, (b) notice by telex, when telexed against receipt
of answer back, or (c) notice by facsimile copy, when verbal communication
of
receipt is obtained.
(a) In
the
case of notice to the Buyer, to:
GSC
INVESTMENT FUNDING LLC
00
Xxxx
00xx
Xxxxxx,
Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
General Counsel
Facsimile
No.: (000) 000-0000
Confirmation
No.: (000) 000-0000
15
(b) In
the
case of notice to the Seller, to:
00
Xxxx
00xx
Xxxxxx,
Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxxxxxx, CEO
Facsimile
No.: (000) 000-0000
Confirmation
No.: (000) 000-0000
(c) In
the
case of notice to the Administrative Agent, to:
DEUTSCHE
BANK AG, NEW YORK BRANCH
00
Xxxx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxx Xx
Facsimile
No.: (000) 000-0000
Confirmation
No.: (000) 000-0000
| Section 9.4 |
Severability
of Provisions.
|
If
any one
or more of the covenants, agreements, provisions or terms of this Agreement
or
any of the Sale Documents shall for any reason whatsoever be held invalid,
then
such covenants, agreements, provisions, or terms shall be deemed severable
from
the remaining covenants, agreements, provisions, or terms of this Agreement
and
the Sale Documents and shall in no way affect the validity or enforceability
of
the other provisions of this Agreement or any of the Sale
Documents.
| Section 9.5 |
Assignment.
|
(a) Notwithstanding
anything to the contrary contained herein, this Agreement may not be assigned
by
the Buyer or the Seller except as permitted by this Section
9.5.
Simultaneously with the execution and delivery of this Agreement, the Buyer
shall assign all of its right, title and interest herein to the Administrative
Agent as agent for the Secured Parties under the Credit Agreement as provided
in
the Credit Agreement, to which assignment the Seller hereby expressly consents.
The Seller agrees that the Administrative Agent, as agent for the Secured
Parties under the Credit Agreement, shall be a third party beneficiary hereof.
The Administrative Agent as agent for the Secured Parties under the Credit
Agreement may enforce the provisions of this Agreement, exercise the rights
of
the Buyer and enforce the obligations of the Seller hereunder following a
Default or an Event of Default and as provided in of the Credit Agreement.
This
Agreement may not be assigned by the Seller except in connection with a merger
or consolidation of the Seller with or into, or disposition of the Seller’s
properties and assets to, another Person, provided,
however,
that any
such merger, consolidation or disposition shall satisfy the requirements of
Section
9.13.
(b) In
connection with any permitted assignment of this Agreement by the Seller, the
Seller shall deliver to the Buyer and the Administrative Agent an Officer’s
Certificate that such assignment complies with this Section
9.5,
and
shall cause such assignee to execute an agreement supplemental hereto, in form
and substance satisfactory to the Seller, pursuant to
16
which
such assignee shall expressly assume and agree to the performance of every
covenant and obligation of the Seller hereunder, to provide for the delivery
of
an Opinion of Counsel that such supplemental agreement is legal, valid and
binding with respect to such assignee, and to take such other actions and
execute such other instruments as may reasonably be required to effectuate
such
assignment.
| Section 9.6 |
Further
Assurances.
|
(a) The
Buyer
and the Seller agree to do and perform, from time to time, any and all acts
and
to execute any and all further instruments required or reasonably requested
by
the other party more fully to effect the purposes of this Agreement and the
Sale
Documents, including, without limitation, the execution of any financing
statements, continuation statements, termination statements, releases or
equivalent documents relating to the Purchased Collateral Debt Obligations
for
filing under the provisions of the UCC or other applicable laws of any
applicable jurisdiction.
(b) If
the
Seller fails to perform any of its obligations hereunder, Buyer (or its assigns)
may (but shall not be required to) perform, or cause performance of, such
obligation, and Buyer’s (or such assigns’) costs and expenses incurred in
connection therewith shall be payable by the Seller as provided in Section
9.14.
The
Seller irrevocably authorizes Buyer (and its assigns) at any time and from
time
to time in the sole discretion of Buyer (or its assigns), and appoints Buyer
(and its assigns) as its attorney(s)-in-fact, to act on its behalf (i) to
authorize on its behalf as debtor and to file financing statements necessary
or
desirable in Buyer’s (or its assigns’) sole discretion to perfect and to
maintain the perfection and priority of the interest of Buyer in the Purchased
Collateral Debt Obligations and (ii) to file a carbon, photographic or other
reproduction of this Agreement or any financing statement with respect to the
Purchased Collateral Debt Obligations as a financing statement in such offices
as Buyer (or its assigns) in their sole discretion deem necessary or desirable
to perfect and to maintain the perfection and priority of Buyer’s interests in
the Purchased Collateral Debt Obligations. This appointment is coupled with
an
interest and is irrevocable.
| Section 9.7 |
No
Waiver; Cumulative Remedies.
|
No
failure
to exercise and no delay in exercising, on the part of the Buyer or the Seller,
any right, remedy, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power
or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exhaustive of
any
rights, remedies, powers and privilege provided by law.
| Section 9.8 |
Counterparts.
|
This
Agreement may be executed in two or more counterparts including facsimile
transmission thereof (and by different parties on separate counterparts), each
of which shall be an original, but all of which together shall constitute one
and the same instrument.
| Section 9.9 |
Binding
Effect; Third-Party Beneficiaries.
|
17
This
Agreement shall inure to the benefit of and the obligations thereunder shall
be
binding upon the parties hereto and their respective successors and permitted
assigns. Any permitted assigns of the Buyer shall be third-party beneficiaries
of this Agreement.
| Section 9.10 |
Merger
and Integration.
|
Except
as
specifically stated otherwise herein, this Agreement, together with the Credit
Agreement and the other Transaction Documents, to the extent that a party is
a
signatory thereto, sets forth the entire understanding of the parties relating
to the subject matter hereof, there are no other agreements between the parties
for transactions relating to or similar to the transactions contemplated by
this
Agreement, and all prior understandings, written or oral, are superseded by
this
Agreement. This Agreement may not be modified, amended, waived or supplemented
except as provided herein.
| Section 9.11 |
Headings.
|
The
headings herein are for purposes of reference only and shall not otherwise
affect the meaning or interpretation of any provision hereof.
| Section 9.12 |
Schedules
and Exhibits.
|
The
schedules and exhibits attached hereto and referred to herein shall constitute
a
part of this Agreement and are incorporated into this Agreement for all
purposes.
| Section 9.13 |
Merger,
Consolidation or Assumption of Obligations of the
Seller.
|
The
Seller
shall not consolidate with or merge into any other corporation or convey or
transfer its properties and assets substantially as an entirety to any Person,
unless:
(i) the
Buyer
and the Administrative Agent shall have consented to such merger, consolidation,
conveyance or transfer in writing;
(ii) the
Person
formed by such consolidation or into which the Seller is merged or the Person
that acquires by conveyance or transfer the properties and assets of the Seller
substantially as an entirety shall be, if the Seller is not the surviving
entity, organized and existing under the laws of the United States of America
or
any State or the District of Columbia and shall expressly assume, by an
agreement supplemental hereto, executed and delivered to the Buyer, in form
satisfactory to the Buyer and the Administrative Agent, the performance of
every
covenant and obligation of the Seller hereunder (to the extent that any right,
covenant or obligation of the Seller, as applicable hereunder, is inapplicable
to the successor entity, such successor entity shall be subject to such covenant
or obligation, or benefit from such right, as would apply, to the extent
practicable, to such successor entity); and
(iii) the
Seller
shall have delivered to the Buyer and the Administrative Agent an Officer’s
Certificate that such consolidation, merger, conveyance or transfer and such
supplemental agreement comply with this Section
9.13
and that
all conditions precedent herein provided for relating to such transaction have
been complied with and an Opinion
18
of
Counsel
that such supplemental agreement is legal, valid and binding with respect to
the
successor entity and that the entity surviving such consolidation, conveyance
or
transfer is organized and existing under the laws of the United States of
America or any State or the District of Columbia.
| Section 9.14 |
Taxes.
|
The
Seller
shall pay on demand any and all stamp, sales, excise and other taxes (excluding
income and franchise taxes of the Buyer) and fees payable or determined to
be
payable in connection with the execution, delivery, filing and recording of
this
Agreement or any agreement or other document delivered in connection with this
Agreement.
| Section 9.15 |
Indemnities
by Seller
|
(a) Without
limiting any other rights that the Buyer may have hereunder or under Applicable
Law, the Seller hereby agrees to indemnify the Buyer and its assigns, officers,
directors, agents and employees (each an “Indemnified
Party”),
forthwith on demand, from and against any and all damages, losses, claims,
taxes, liabilities and related costs and expenses, including reasonable
attorneys’ fees (which attorneys may be employees of the Buyer) and
disbursements (all of the foregoing being collectively referred to as
“Indemnified
Amounts”)
awarded
against or incurred by any such Indemnified Party or other non-monetary damages
of any such Indemnified Party any of them arising out of or as a result of
this
Agreement or the acquisition, either directly or indirectly, by the Buyer of
the
Originator Collateral Debt Obligations, excluding, however:
(i) Indemnified
Amounts to the extent that such Indemnified Amounts resulted from gross
negligence or willful misconduct on the part of the Indemnified Party seeking
indemnification;
(ii) Indemnified
Amounts to the extent the same includes losses in respect of Originator
Collateral Debt Obligations that are uncollectible on account of the insolvency,
bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes
imposed by the jurisdiction in which such Indemnified Party’s principal
executive office is located, on or measured by the overall net income of such
Indemnified Party;
provided, however,
that
nothing contained in this sentence shall limit the liability of the Seller
or
limit the recourse of Buyer to the Seller for amounts otherwise specifically
provided to be paid by the Seller under the terms of this Agreement. Without
limiting the generality of the foregoing indemnification, the Seller shall
indemnify Buyer for Indemnified Amounts (including, without limitation, losses
in respect of uncollectible Originator Collateral Debt Obligations, regardless
of whether reimbursement therefor would constitute recourse to the Seller)
relating to or resulting from:
(i) any
Originator Collateral Debt Obligation treated as or represented by the Seller
to
be an Eligible Collateral Debt Obligation that is not at the applicable time
an
Eligible Collateral Debt Obligation;
19
(ii) any
representation or warranty made or deemed made by the Seller or any of its
officers under or in connection with this Agreement, any other Sale Document
or
any other information or report delivered by the Seller pursuant hereto or
thereto, which shall have been false or incorrect in any material respect when
made or deemed made or delivered;
(iii) the
failure by the Seller to comply with any term, provision or covenant contained
in this Agreement or any agreement executed in connection with this Agreement,
or with any Applicable Law with respect to any Originator Collateral Debt
Obligation or the Collateral Debt Obligation Documents related thereto, or
the
nonconformity of any Originator Collateral Debt Obligation, the Related Property
or the Collateral Debt Obligation Documents related thereto with any such
Applicable Law, or any failure by the Seller to perform its duties, express
or
implied, with respect to any Originator Collateral Debt Obligation;
(iv) any
dispute, claim, offset or defense (other than discharge in bankruptcy of the
Obligor) of the Obligor to the payment of any Originator Collateral Debt
Obligation (including, without limitation, a defense based on such Originator
Collateral Debt Obligation or the Collateral Debt Obligation Documents related
thereto not being a legal, valid and binding obligation of such Obligor
enforceable against it in accordance with its terms);
(v) any
failure of Seller to perform its duties or obligations under the Originator
Collateral Debt Obligations or in accordance with the provisions of this
Agreement or any other Sale Document;
(vi) any
investigation, litigation or proceeding related to or arising from this
Agreement or any other Sale Document, the transactions contemplated hereby,
the
use of the proceeds of a purchase hereunder, the ownership of the Originator
Collateral Debt Obligations or any other investigation, litigation or proceeding
relating to the Seller in which any Indemnified Party becomes involved as a
result of any of the transactions contemplated hereby;
(vii) any
failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal
and
equitable title to, and ownership of, any Originator Collateral Debt Obligation,
free and clear of any Adverse Claim (except as created by the Transaction
Documents);
(viii) the
failure of the Seller to or any of its agents or representatives to remit to
the
Buyer or its assignees, Collections remitted to the Seller or any such agent
or
representative in accordance with the terms hereof or the commingling by the
Seller of any Collections;
(ix) any
action
or omission by the Seller which causes the occurrence of a Subordination
Event;
(x) any
action
or omission by Seller which reduces or impairs the rights of Buyer with respect
to any Originator Collateral Debt Obligation or the value of any such Originator
Collateral Debt Obligation; and
20
(xi) any
attempt by any Person to void the purchases made hereunder under statutory
provisions or common law or equitable action.
(b) If
for any
reason the indemnification provided above in this Section
9.15
is
unavailable to the Indemnified Party or is insufficient to hold an Indemnified
Party harmless, then the Seller shall contribute to the amount paid or payable
by such Indemnified Party as a result of such loss, claim, damage or liability
in such proportion as is appropriate to reflect not only the relative benefits
received by such Indemnified Party on the one hand and the Seller, on the other
hand but also the relative fault of such Indemnified Party as well as any other
relevant equitable considerations.
(c) The
obligations of the Seller under this Section
9.15
shall
survive the removal of the Administrative Agent or any Managing Agent and the
termination of this Agreement.
| Section 9.16 |
No
Petition.
|
From
the
date hereof to and until the date which is one year and one day following the
date on which all amounts due with respect to any indebtedness of the Purchaser
shall have been paid in full in cash, the Seller shall not, directly or
indirectly, institute or cause to be instituted against the Purchaser any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding
or
other proceeding under any federal or state bankruptcy or similar law or
cooperate with or encourage any other Person to take such action; provided,
that the
foregoing shall not in any way limit the Seller’s right to pursue any other
creditor rights or remedies that the Seller may have under applicable law.
The
Seller agrees that any amounts payable by the Purchaser hereunder shall be
payable solely to the extent that the Purchaser has funds available to make
such
payments in accordance with its organizational documents and the Transaction
Documents. The provisions of this Section
9.16
shall
survive the termination of this Agreement.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
21
IN
WITNESS
WHEREOF, the Buyer and the Seller have caused this Agreement to be duly executed
by their respective officers as of the day and year first above
written.
|
GSC
INVESTMENT FUNDING LLC
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxxxx | |
|
Name:
Xxxxxx X. Xxxxxxxx
|
||
|
Title:
President
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxxxx | |
|
Name:
Xxxxxx X. Xxxxxxxx
|
||
|
Title:
Chief Executive Officer
|
||
SCHEDULE
I
SCHEDULE
OF COLLATERAL DEBT OBLIGATIONS
[to
be
delivered for initial Purchase]
SCHEDULE
II
TRADENAMES,
FICTITIOUS NAMES AND “DOING BUSINESS AS” NAMES;
LOCATION
OF RECORDS
Prior
Name: GSC Investment LLC
Location
of Records:
000
Xxxxxx
Xxxxx, Xxxxx 000
Xxxxxxx
Xxxx, XX 00000-0000
Principal
Executive Offices:
00
Xxxx
00xx
Xxxxxx,
Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx 00000
EXHIBIT
A
FORM
OF
ASSIGNMENT
ASSIGNMENT,
dated as of ____________, from GSC INVESTMENT CORP., a Maryland corporation
(the
“Seller”),
to GSC
INVESTMENT FUNDING LLC, a Delaware limited liability company (the “Buyer”).
1. We
refer
to the Purchase and Sale Agreement, dated as of April 11, 2007 (as amended,
modified, supplemented or restated from time to time, the “Agreement”),
by and
between the Seller and the Buyer. All capitalized terms used herein shall have
the meanings set forth in the Agreement.
2. The
Seller
does hereby convey, set over and assign to the Buyer, without recourse, all
of
the Seller’s right, title and interest in and to the following, in each case
whether now or hereafter existing or in which the Seller now has or hereafter
acquires an interest and wherever the same may be located:
(i) the
Originator Collateral Debt Obligations identified on the applicable Schedule
of
Collateral Debt Obligations delivered by the Seller to the Buyer at least one
(1) Business Day before the requested Purchase Date, together with all monies
due or to become due in payment of such Originator Collateral Debt Obligations
on and after such Purchase Date;
(ii) the
Related Property securing such Originator Collateral Debt Obligations, including
all proceeds from any sale or other disposition of such Related
Property;
(iii) the
Collateral Debt Obligation Documents related to such Originator Collateral
Debt
Obligations;
(iv) all
Supplemental Interests related to such Originator Collateral Debt
Obligations;
(v) all
Collections and all other payments made or to be made in the future with respect
to such Originator Collateral Debt Obligations or by the Obligor thereunder
and
under any guarantee or similar credit enhancement with respect to such
Originator Collateral Debt Obligations; and
(vi) all
income
and proceeds of the foregoing.
3. Simultaneously
with the execution and delivery hereof the Seller has delivered to or at the
direction of the Buyer such endorsements and assignments, made without recourse,
of the Collateral Debt Obligation Files as are necessary to properly complete
the absolute assignment of the Originator Collateral Debt Obligations to the
Buyer.
4. THIS
CERTIFICATE OF ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CHOICE OF LAW
PROVISIONS.
A-1
IN
WITNESS
WHEREOF, the Seller has caused this Assignment to be executed by its authorized
officer as of the date first above written.
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
