AMENDED AND RESTATED LOAN SALE AND CONTRIBUTION AGREEMENT by and between MONROE CAPITAL INCOME PLUS CORPORATION, as the Seller, and MONROE CAPITAL INCOME PLUS ABS FUNDING II, LLC, as the Buyer Dated as of November 21, 2024
Exhibit 10.3
EXECUTION VERSION
AMENDED AND RESTATED LOAN SALE AND CONTRIBUTION AGREEMENT
by and between
MONROE
CAPITAL INCOME PLUS CORPORATION,
as the Seller,
and
MONROE
CAPITAL INCOME PLUS ABS FUNDING II, LLC,
as the Buyer
Dated as of November 21, 2024
Table of Contents
Page
| ARTICLE I DEFINITIONS | 1 | |
| Section 1.01 | Definitions | 1 |
| Section 1.02 | Other Terms | 4 |
| Section 1.03 | Computation of Time Periods | 4 |
| Section 1.04 | Interpretation | 4 |
| Section 1.05 | References | 5 |
| Section 1.06 | Calculations | 5 |
| ARTICLE II TRANSFER OF LOAN ASSETS | 6 | |
| Section 2.01 | Sale, Transfer and Assignment | 6 |
| Section 2.02 | Purchase Price | 8 |
| Section 2.03 | Payment of Purchase Price | 8 |
| ARTICLE III CONDITIONS PRECEDENT | 10 | |
| Section 3.01 | Conditions Precedent | 10 |
| Section 3.02 | Conditions Precedent to all Purchases | 10 |
| Section 3.03 | Release of Excluded Amounts | 11 |
| ARTICLE IV REPRESENTATIONS AND WARRANTIES | 11 | |
| Section 4.01 | Representations and Warranties Regarding the Seller | 11 |
| Section 4.02 | Representations and Warranties of the Seller Relating to the Agreement and the Collateral | 15 |
| Section 4.03 | Representations and Warranties Regarding the Buyer | 16 |
| Section 4.04 | Ordinary Course of Business | 17 |
| ARTICLE V COVENANTS | 17 | |
| Section 5.01 | Affirmative Covenants of the Seller | 17 |
| Section 5.02 | Negative Covenants of the Seller | 20 |
| ARTICLE VI Option to repurchase AND Substitute Collateral Obligations | 20 | |
| Section 6.01 | Optional Repurchases or Substitution of Collateral Obligations | 20 |
| Section 6.02 | Reassignment of Substituted or Repurchased Collateral Obligations | 21 |
| ARTICLE VII INDEMNIFICATION BY THE SELLER | 21 | |
| Section 7.01 | Indemnification | 21 |
| Section 7.02 | Liabilities to Obligors | 22 |
| Section 7.03 | Operation of Indemnities | 22 |
| Section 7.04 | Limitation on Liability | 22 |
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TABLE OF CONTENTS
(Continued)
Page
| ARTICLE VIII MISCELLANEOUS | 23 | |
| Section 8.01 | Amendments and Waivers | 23 |
| Section 8.02 | Notices, Etc. | 24 |
| Section 8.03 | Binding Effect; Benefit of Agreement | 24 |
| Section 8.04 | GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF OBJECTION TO VENUE SERVICE OF PROCESS | 25 |
| Section 8.05 | WAIVER OF JURY TRIAL | 25 |
| Section 8.06 | Certain Taxes | 25 |
| Section 8.07 | Non-Petition | 25 |
| Section 8.08 | Recourse Against Certain Parties | 26 |
| Section 8.09 | Protection of Right, Title and Interest in the Collateral; Further Action Evidencing Purchases | 26 |
| Section 8.10 | Execution in Counterparts; Severability; Integration | 27 |
| Section 8.11 | Headings, Exhibits and Schedules | 27 |
| Section 8.12 | Assignment | 28 |
| Section 8.13 | Duration of Agreement | 28 |
| Section 8.14 | Acts of Buyer | 28 |
| Section 8.15 | No Partnership | 28 |
| Section 8.16 | Effect of Amendment and Restatement | 28 |
| Exhibit A | Form of Assignment |
| Schedule I | Collateral Obligations |
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AMENDED AND RESTATED LOAN SALE AND CONTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED LOAN SALE AND CONTRIBUTION AGREEMENT, dated as of November 21, 2024 (as amended, modified, supplemented or restated from time to time, this “Agreement”), is between MONROE capital income plus corporation, a Maryland corporation (together with its successors and assigns, “Fund,” and in its capacity as seller hereunder, together with its successors and assigns, the “Seller”), and MONROE CAPITAL INCOME PLUS ABS FUNDING II, llc, a Delaware limited liability company (together with its successors and assigns, the “Buyer”).
WHEREAS, the Seller and Xxxxx entered into that certain Loan Sale and Contribution Agreement dated as of September 15, 2023 (as amended, the “Original Agreement”);
WHEREAS, the Seller and the Buyer now wish to amend and restate the Original Agreement in its entirety as set forth in this Agreement;
WHEREAS, the parties hereto acknowledge and agree that the Original Agreement is hereby, amended, restated and replaced in its entirety by this Agreement;
WHEREAS, in the regular course of its business, the Seller originates and/or otherwise acquires Collateral Obligations; and
WHEREAS, the Seller has acquired or on the date hereof desires to acquire certain of the Collateral Obligations (the “Initial Collateral Obligations”) and the Buyer has acquired pursuant to the Original Agreement or desires to acquire the Initial Collateral Obligations from the Seller on the Refinancing Date, and from time to time after the Refinancing Date acquire from the Seller additional or substitute Collateral Obligations hereunder, together with certain related property as more fully described herein and included as part of the “Assets” in the Amended and Restated Indenture, dated as of November 21, 2024 (as amended, modified, restated or supplemented from time to time, the “Indenture”), between the Buyer, as Issuer and U.S. Bank Trust Company, National Association, as Trustee.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
Capitalized terms used but not defined in this Agreement shall have the meanings attributed to such terms in the Indenture unless the context otherwise requires. In addition, as used herein, the following defined terms shall have the following meanings:
“Agreement” shall have the meaning provided in the first paragraph of this Agreement.
“Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, public body, administrative tribunal, central bank, public office, court, arbitration or mediation panel, or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of government, including the FINRA, the SEC, the stock exchanges, any Federal, state, territorial, county, municipal or other government or governmental agency, arbitrator, board, body, branch, bureau, commission, court, department, instrumentality, master, mediator, panel, referee, system or other political unit or subdivision or other entity of any of the foregoing, whether domestic or foreign.
“Buyer” shall have the meaning provided in the first paragraph of this Agreement.
“Collateral” shall have the meaning provided in Section 2.01(a).
“Xxxx-Xxxxx” means the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
“Excluded Amounts” means (a) any amount received by, on or with respect to any Collateral Obligation in the Collateral, which amount is attributable to the payment of any tax, fee or other charge imposed by any Authority on such Collateral Obligation, (b) any amount representing escrows relating to taxes, insurance and other amounts in connection with any Collateral Obligation which is held in an escrow account for the benefit of the related Obligor and the secured party (other than the Seller in its capacity as lender with respect to such Collateral Obligation) pursuant to escrow arrangements, (c) any amount with respect to any Collateral Obligation repurchased or substituted by the Seller under Article VI hereof to the extent such amount is attributable to a time after the effective date of such repurchase or substitution, (d) any Retained Fee retained by the Person(s) entitled thereto in connection with the origination of any Collateral Obligation, (e) any accrued and unpaid interest on any Collateral Obligation with respect to the period of time prior to and excluding the Refinancing Date and (f) any Equity Security related to any Collateral Obligation that the Seller determines will not be transferred by the Seller in connection with the sale of any related Collateral Obligation hereunder.
“Financing Facility” means any credit facility or collateral obligation transaction entered into by the Seller or any Affiliate thereof pursuant to which any Collateral Obligation may be released from the lien thereof and sold by the Seller as a Collateral Obligation hereunder.
“Fund” shall have the meaning provided in the first paragraph of this Agreement.
“Governmental Authorizations” means all franchises, permits, licenses, approvals, consents, orders and other authorizations of all Authorities.
“Governmental Filings” means all filings, including franchise and similar tax filings, and the payment of all fees, assessments, interests and penalties associated with such fillings with all Authorities.
“Indemnified Party” shall have the meaning provided in Section 7.01.
“Indenture” shall have the meaning provided in the Preamble to this Agreement.
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“Lien” means any security interest, mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever, including, without limitation, any conditional sale or other title retention agreement, and any financing lease having substantially the same economic effect as any of the foregoing (including any UCC financing statement or any similar instrument filed against a Person’s assets or properties).
“Loan List” means the list, attached as Schedule I to this Agreement, of Collateral Obligations provided by the Seller to the Buyer on the Refinancing Date, as supplemented on each Purchase Date following the Refinancing Date, by incorporating each additional Collateral Obligation listed in an assignment of such Collateral Obligation substantially in the form of Exhibit A to this Agreement, as such list may be further amended, supplemented or modified from time to time in accordance with this Agreement.
“Material Adverse Effect” means, with respect to the Person making the related representation and warranty or agreeing to the related covenant, any event that has, or could reasonably be expected to have, a material adverse effect on (a) the business, assets, financial condition or operations of such Person, (b) the ability of such Person to perform its obligations under the Transaction Documents to which it is a party or (c) the rights, interests, remedies or benefits (taken as a whole) available to the Trustee under the Transaction Documents.
“Payment in Full Date” means the date on which the Indenture is satisfied and discharged in accordance with its terms.
“Permitted Liens” means (i) with respect to the Collateral, security interests, Liens and other encumbrances created pursuant to the Transaction Documents, (ii) with respect to agented Collateral Obligations, security interests, liens and other encumbrances in favor of the lead agent, the collateral agent or the paying agent on behalf of all holders of indebtedness of such Obligor under the related facility (including the Buyer), (iii) with respect to any Equity Security in an Obligor, any security interests, liens and other encumbrances granted on such Equity Security to secure indebtedness of the related Obligor and/or any security interests, liens and other rights or encumbrances granted under any governing documents or other agreement between or among or binding upon the Issuer as the holder of equity in such Obligor and (iv) with respect to the Collateral Obligations, security interests, liens and other encumbrances, if any, which have priority over first priority perfected security interests in the Collateral Obligations or any portion thereof under the UCC or any other applicable law.
“Purchase” means a purchase or other acquisition of Collateral by the Buyer from or as directed or referred by the Seller pursuant to Section 2.01.
“Purchase Date” means any day on which any Collateral Obligation is acquired by the Buyer from the Seller pursuant to the terms of this Agreement (including any Substitution Date).
“Purchase Price” shall have the meaning provided in Section 2.02.
“Repurchase Price” means, on any date of determination with respect to any Collateral Obligation with respect to which the Seller elects to exercise its option to purchase or repurchase pursuant to Section 6.01 of this Agreement, an amount at least equal to the Market Value of such Collateral Obligation.
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“Retained Fee” means any reasonable origination, structuring or similar closing fee charged by the Person originating a loan on behalf of its lenders for services it has performed in connection with such origination, which is not customarily made available to the lenders as part of their return with respect to such loan, and provided such Person is entitled to retain the same in accordance with applicable law.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, all as from time to time in effect, or any successor law, rules or regulations, and any reference to any statutory or regulatory provisions shall be deemed to be a reference to any successor statutory or regulatory provision.
“Seller” shall have the meaning provided in the first paragraph of this Agreement.
“Substitution Date” means any date on which the Seller transfers a substitute Collateral Obligation to the Buyer.
“Trustee” shall have the meaning provided in the Preamble to this Agreement.
“Xxxxxxx Rule” means Section 13 of the U.S. Bank Holding Company Act of 1956, as amended, and the applicable rules and regulations thereunder.
All accounting terms used but not specifically defined herein shall be construed in accordance with generally accepted accounting principles in the United States. The symbol “$” shall mean the lawful currency of the United States of America. All terms used in Article 9 of the UCC in the State of New York, and not specifically defined herein, are used herein as defined in such Article 9.
Section 1.03 Computation of Time Periods.
Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including,” the words “to” and “until” each mean “to but excluding”.
In this Agreement, unless a contrary intention appears:
| (i) | the singular number includes the plural number and vice versa; |
| (ii) | reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by the Transaction Documents; |
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(iii) references to “including” means “including, without limitation”;
(iv) reference to day or days without further qualification means calendar days;
(v) unless otherwise stated, reference to any time means New York, New York time;
(vi) references to “writing” include printing, typing, lithography, electronic or other means of reproducing words in a visible form;
(vii) reference to any agreement (including any Transaction Document), document or instrument means such agreement, document or instrument as amended, modified, supplemented, replaced, restated, waived or extended and in effect from time to time in accordance with the terms thereof and, if applicable, the terms of the other Transaction Documents, and reference to any promissory note includes any promissory note that is an extension or renewal thereof or a substitute or replacement therefore;
(viii) reference to any applicable law means such applicable law as amended, modified, codified, replaced or reenacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder and reference to any Section or other provision of any applicable law means that provision of such applicable law from time to time in effect and constituting the substantive amendment, modification, codification, replacement or reenactment of such Section or other provision; and
(ix) reference to any gender includes each other gender.
All section references (including references to the preamble), unless otherwise indicated, shall be to Sections (and the preamble) in this Agreement.
Except as otherwise provided herein, all interest rate and basis point calculations hereunder will be made on the basis of a 360-day year consisting of twelve 30-days months and the actual days elapsed in the relevant period and will be carried out to at least three decimal places.
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ARTICLE II
Section 2.01 Sale, Transfer and Assignment.
(i) the Collateral Obligations listed on the Loan List delivered by the Seller to the Buyer from time to time pursuant to this Agreement, all payments paid in respect thereof and all monies due, to become due or paid in respect of such Collateral Obligations on and after the related Purchase Date, including but not limited to all collections on the Collateral Obligations and other recoveries thereon, in each case as they arise after the related Purchase Date;
(ii) all Liens with respect to the Collateral Obligations referred to in clause (i) above;
(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, payments and proceeds and other supporting obligations of the foregoing.
(b) In addition to the rights of the Buyer to acquire Collateral Obligations from the Seller hereunder after the Refinancing Date, the Buyer may acquire Collateral Obligations from certain other entities managed by the Collateral Manager or an affiliate of the Collateral Manager, each of which shall be (or be deemed to be) a Collateral Obligation referred by the Seller to the Buyer and sold by the Seller to the Buyer hereunder.
(c) [Reserved].
(d) From and after each Purchase Date, the Collateral listed on the Loan List shall be deemed to be Collateral hereunder.
(e) 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 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.
(f) Except as specifically provided in this Agreement, the sale and purchase of Collateral under this Agreement shall be without recourse to the Seller; it being understood that the Seller shall be liable to the Buyer for all representations, warranties, covenants and indemnities made by 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.
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(g) 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 Indenture, or cause to be delivered in accordance with the Indenture (on behalf of the Buyer), to the Trustee, each Collateral Obligation being transferred to the Buyer on such Purchase Date in accordance with the applicable provisions of the Indenture.
(h) The Seller shall take such action requested by the Buyer, 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 an enforceable and perfected security interest in the Collateral purchased by the Buyer as contemplated by this Agreement.
(i) In connection with the Purchase by the Buyer of the Collateral as contemplated by this Agreement, the Seller agrees that it will, at its own expense, indicate clearly and unambiguously in its computer files on and after each such Purchase that such Collateral has been Purchased by the Buyer and the Seller agrees that it will indicate clearly and unambiguously on and after the related Purchase Date in its financial statements that such Collateral is owned by the Buyer and is not available to pay creditors of the Seller.
(j) 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 (which shall 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 part of Schedule I to this Agreement, shall be delivered to the Buyer as confidential and proprietary (subject to the exceptions set forth herein and in the other Transaction Documents), 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. In addition, with respect to each Collateral Obligation sold by the Seller to the Buyer hereunder, the Seller shall deliver to the Buyer an assignment of such Collateral Obligation substantially in the form of Exhibit A hereto.
(k) [Reserved].
(l) [Reserved].
(m) It is the intention of the parties hereto that the conveyance of all right, title and interest in and to the Collateral to the Buyer by the Seller on each Purchase Date, as provided in this Section 2.01 shall constitute an absolute sale, conveyance and transfer of ownership of such Collateral conveying good title, free and clear of any Lien (other than Permitted Liens), rather than the mere granting of a security interest to secure a borrowing, and that the Collateral shall not be part of the Seller’s bankruptcy estate in the event of any bankruptcy or insolvency proceedings with respect to the Seller. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Collateral Obligations and the other Collateral to the Buyer to secure a debt or other obligation of the Seller.
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(n) If, however, notwithstanding the intention of the parties set forth in Section 2.01(m), the conveyances provided for in this Section 2.01 by the Seller are determined to be a transfer for 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. With respect to the Collateral transferred on any Purchase Date 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 and to such 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 Collateral and all other obligations hereunder, (B) 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 with respect thereto, which rights and remedies shall be cumulative, and (C) the Seller authorizes the Buyer and, so long as the Payment in Full Date has not occurred, the Trustee on behalf of the Secured Parties to file UCC financing statements and amendments, as necessary, naming the Seller as “debtor,” the Buyer as “assignor secured party,” and the Trustee, as “assignee secured party,” or similar applicable designations, each describing such Collateral, in each jurisdiction that the Buyer deems necessary in order to protect the security interests in the Collateral granted under this Section 2.01(n).
The purchase price with respect to the Collateral sold on any Purchase Date by the Seller to the Buyer shall be a dollar amount equal to the Market Value thereof as determined by the Seller and the Buyer, and such transaction shall be on terms no less favorable to the Buyer than it would obtain in a comparable arm’s length transaction with a Person that is not an Affiliate (in each case, the “Purchase Price”).
Section 2.03 Payment of Purchase Price.
(a) The Purchase Price for any Collateral acquired by the Buyer from the Seller on any Purchase Date pursuant to this Agreement shall be paid in a combination of (A) immediately available funds in cash and (B) if the Buyer does not have sufficient funds in cash to pay the full amount of the Purchase Price, by means of a contribution by the Seller to the Buyer.
(b) [Reserved].
(c) The Purchase Price for any Collateral purchased by the Buyer to be settled directly with a third party on any Purchase Date shall be paid in immediately available funds, which may comprise, if the Buyer does not have sufficient funds in cash to pay the full amount of the Purchase Price, the amounts contributed by the Seller to the Buyer to be paid to such third party.
(d) Notwithstanding any provision herein to the contrary, the Seller may on any Purchase Date elect to designate all or a portion of the Collateral proposed to be transferred to the Buyer on such date as a contribution to the Buyer. In such event, the cash portion of the Purchase Price payable with respect to such transfer shall be reduced by that portion of the Purchase Price of the Collateral that was so contributed; provided that Collateral contributed to the Buyer as shall constitute Collateral for all purposes of this Agreement. To the extent the fair market value of any Collateral purchased or acquired by replacement and substitution by the Buyer pursuant to this Agreement exceeds the amount of cash paid or other consideration exchanged therefore, such excess shall be deemed to be a contribution from the Seller to the Buyer. In addition, the Seller may also elect to contribute cash or Collateral to the Buyer for any other purpose.
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(e) The Seller, in connection with each Purchase hereunder relating to any Collateral, shall be deemed to have certified, and hereby does certify, with respect to the Collateral to be Purchased by the Buyer on such day, that its representations and warranties contained in Article IV are true and correct in all material respects on and as of such day, with the same effect as though made on and as of such day.
(f) Upon the payment of the Purchase Price for any Purchase, title to the Collateral included in such Purchase shall vest in the Buyer, as provided herein, whether or not the conditions precedent to such Purchase and the other covenants and agreements contained herein were in fact satisfied; provided that the Buyer shall not be deemed to have waived any claim it may have under this Agreement for the failure by the Seller in fact to satisfy any such condition precedent, covenant or agreement.
(g) The Seller and the Buyer acknowledge and agree that, solely for administrative convenience, any transfer or assignment agreement (or, in the case of any underlying promissory note, any chain of endorsement) required to be executed and delivered in connection with the transfer of a Collateral Obligation in accordance with the terms of any Underlying Instruments may reflect that the Seller is transferring and/or assigning such Collateral Obligation directly to the Buyer. Nothing in any such documents or transfer or assignment agreements shall be deemed to impair the transfers of the Collateral Obligations by the Seller to the Buyer in accordance with the terms of this Agreement. Any such Collateral Obligation so transferred or assigned for administrative convenience shall be deemed sold and transferred by the related seller to the Seller and, pursuant to this Agreement, shall be sold and transferred directly or indirectly, as applicable, by the Seller to the Buyer. For the avoidance of doubt, all of the applicable provisions of this Agreement, including without limitation the conditions precedent to all purchases, the representations and warranties of the Seller, the covenants of the Seller and the indemnity of the Seller, contained in Section 3.02, Article IV, Article V and Article VII hereof, respectively, shall apply to the Seller with equal force with respect to any sales and assignments for administrative convenience under this Agreement (whether in connection with any sale or assignment by any related seller to the Buyer) as if such sale and assignment was directly or indirectly, as applicable, from the Seller to the Buyer as provided herein.
(h) Collateral Obligations may be purchased or acquired from time to time by the Buyer from the Seller or any of its Affiliates hereunder only if (i) the terms and conditions thereof are no less favorable to the Buyer than the terms it would obtain in a comparable, timely purchase or acquisition with a non-Affiliate and (ii) the transactions are effected in accordance with all applicable laws.
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ARTICLE III
Section 3.01 Conditions Precedent
This Agreement is subject to the conditions precedent that on or prior to the Refinancing Date each of the conditions precedent to the execution, delivery and effectiveness of each other Transaction Document (other than a condition precedent in any such other Transaction Document relating to the effectiveness of this Agreement) shall have been fulfilled, and:
(a) Counterparts of this Agreement shall have been executed and delivered by or on behalf of the Seller and the Buyer; and
(b) Seller has delivered to Buyer UCC-1 financing statements filed on or about the Original Closing Date as required by Section 2.01(n) describing the applicable Collateral and meeting the requirements of the laws of each jurisdiction in which it is necessary or reasonably desirable, or in which the Seller is required by applicable law, and in such manner as is necessary or reasonably desirable, to perfect the back-up security interest granted under Section 2.01(n).
Section 3.02 Conditions Precedent to all Purchases.
(a) The obligations of the Buyer to Purchase the Collateral from the Seller on any Purchase Date shall be subject to the satisfaction of the following conditions precedent that:
(i) all representations and warranties of the Seller contained in Sections 4.01 and 4.02 shall be true and correct in all material respects on and as of such date as though made on and as of such date and shall be deemed to have been made on and as of such date (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(ii) the Seller shall have delivered to the Buyer a duly completed Loan List that is true, accurate and complete in all respects as of the related Purchase Date, which list shall be as of such date incorporated into and made a part of this Agreement and an assignment substantially in the form of Exhibit A hereto;
(iii) on and as of such Purchase Date, the Seller shall have performed all of the obligations, covenants and agreements required to be performed by it with respect to the related Collateral on or prior to such date pursuant to the provisions of this Agreement, including ensuring that all financing statements or other similar instruments or documents necessary under the UCC (or any comparable law) of all appropriate jurisdictions to perfect the Buyer’s ownership interest in the related Collateral Obligations have been duly filed; and
(iv) such Purchase Date occurs during the Reinvestment Period.
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Section 3.03 Release of Excluded Amounts.
The parties acknowledge and agree that the Buyer has no interest in the Excluded Amounts. Promptly upon the receipt by or release to the Buyer of any Excluded Amounts, the Buyer hereby irrevocably agrees to deliver and release to (or as directed by) the Seller such Excluded Amounts, which release shall be automatic and shall require no further act by the Buyer; provided that the Buyer agrees that it will execute and deliver such instruments of release and assignment or other documents, or otherwise confirm the foregoing release of such Excluded Amounts, as may be reasonably requested by the Seller in writing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties Regarding the Seller.
As of the Refinancing Date and as of each Purchase Date after the Refinancing Date, the Seller represents and warrants to the Buyer for the benefit of the Buyer and each of its successors and assigns, that:
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(j) [Reserved]
(i) As described in Section 2.01(n) hereof, it is the intention of the parties hereto that the conveyance of the Collateral by the Seller to or 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, this Agreement creates a valid and continuing security interest (as defined in the applicable UCC) granted by the Seller in favor of the Buyer in all right, title and interest of the Seller in, to and under the Collateral transferred by the Seller thereto, as applicable, which security interest shall be a first priority perfected security interest prior to all other Liens (except for Permitted Liens), and is enforceable as such against creditors of and purchasers from the Seller upon execution and delivery of this Agreement, subject, as to enforcement, (A) to the effect of bankruptcy, insolvency or similar laws affecting generally the enforcement of creditors’ rights as such laws would apply in the event of any bankruptcy, receivership, insolvency or similar event applicable to the Seller and (B) to general equitable principles (whether enforceability of such principles is considered in a proceeding at law or in equity);
(ii) the Collateral Obligations, along with the Underlying Instruments, constitute “general intangibles,” “instruments,” “accounts,” “investment property,” or “chattel paper,” within the meaning of the applicable UCC;
(iii) the Seller owns and has, and upon the sale and transfer thereof by the Seller to the Buyer, the Buyer will have, good and marketable title to such Collateral Obligations free and clear of any Lien (other than Permitted Liens), claim or encumbrance of any Person;
(iv) the Seller has received all consents and approvals, if any, required by the terms of the Collateral Obligations to the sale of the Collateral Obligations hereunder to the Buyer (except (A) to the extent that the requirement for such consent is rendered ineffective under Section 9-406 of the UCC and (B) for any customary procedural requirements and agents’ and/or Obligors’ consents expected to be obtained in due course in connection with the transfer of the Collateral Obligations to the Buyer (except, in the case of clause (B), for any such agents’ consents where the Seller or any of its Affiliates is the agent which the Seller has or will obtain));
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(v) the Seller has caused the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Collateral Obligations granted by the Seller to the Buyer under this Agreement to the extent perfection can be achieved by filing a financing statement;
(vi) other than the sale by the Seller to the Buyer hereunder and the back up security interest granted by the Seller to the Buyer pursuant to this Agreement, the Seller has not pledged, assigned, sold, granted a security interest in or otherwise conveyed any of the Collateral Obligations, except in connection with any Financing Facility, if any, which security interests, if any, with respect to such Collateral Obligations will be released on the applicable Purchase Date. The Seller has not authorized the filing of and is not aware of any financing statements naming the Seller as debtor that include a description of collateral covering the Collateral Obligations constituting Collateral hereunder other than any financing statement (A) relating to the security interest granted to the Buyer under this Agreement, or (B) that has been or will be terminated as of the related Purchase Date or for which a release or partial release has been or will be timely filed. The Seller is not aware of the filing of any judgment or tax Lien filings against the Seller;
(vii) except with respect to any Collateral Obligation for which there is no promissory note, all original executed copies of each promissory note that constitutes or evidences the Collateral Obligations sold by the Seller hereunder have been delivered by the Seller at the direction of the Buyer, as required hereunder; and
(viii) none of the promissory notes, if any that constitute or evidence any Collateral Obligations sold by the Seller hereunder has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Buyer.
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The representations and warranties set forth in this Section 4.01 shall survive the sale, transfer and assignment of the Collateral Obligations to the Buyer and be for the benefit of the Buyer and the Trustee, on behalf of the Secured Parties, and the Seller acknowledges that the Buyer and the Trustee may enforce directly any obligations of the Seller with respect to breaches of such representations and warranties that materially and adversely affect the interests of the Noteholders.
The Seller hereby represents and warrants to the Buyer, as of the Refinancing Date and as of each Purchase Date after the Refinancing Date:
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Section 4.03 Representations and Warranties Regarding the Buyer.
By its execution of this Agreement, the Buyer represents and warrants to the Seller that:
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Section 4.04 Ordinary Course of Business.
Each of the Seller and the Buyer represents and warrants to the other as to itself that in the event the conveyances of the Collateral provided for in Section 2.01(a) are determined by a court of competent jurisdiction to be a transfer for security purposes, each remittance of payments, if any, by the Seller under this Agreement will have been (i) in payment of an obligation incurred by the Seller in the ordinary course of business or financial affairs of the Seller and the Buyer, as the case may be, and (ii) made in the ordinary course of business or financial affairs of the Seller and the Buyer.
ARTICLE V
Section 5.01 Affirmative Covenants of the Seller.
From the date hereof until the Payment in Full Date:
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(i) the Seller shall maintain corporate records and books of account separate from those of the Buyer;
(ii) the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall not reflect in any way that the assets of the Buyer, including, without limitation, the Collateral, could be available to pay creditors of the Seller;
(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) except as otherwise expressly permitted or required by the Transaction Documents, the Seller shall maintain an arm’s–length relationship with the Buyer;
(v) the Seller will not hold itself out as being liable for the debts of the Buyer;
(vi) except as otherwise permitted under the Transaction Documents, the Seller shall keep its assets and its liabilities wholly separate from those of the Buyer;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Buyer are available to pay the obligations and debts of the Seller;
(viii) to the extent that the Seller performs any services on the Buyer’s behalf, the Seller will clearly identify itself as an agent for the Buyer in the performance of such duties; provided, however, that the Seller will not be required to so identify itself when communicating with the Obligors not in its capacity as agent for the Buyer but rather in its capacity as agent for a group of lenders; and
(ix) the Seller shall take or refrain from taking, as applicable, each of the activities specified or assumed in the true sale opinion of Dechert LLP delivered on the Original Closing Date, upon which the conclusions expressed therein are based.
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Section 5.02 Negative Covenants of the Seller.
From the date hereof until the Payment in Full Date:
ARTICLE VI
Option to repurchase AND Substitute Collateral Obligations
Section 6.01 Optional Repurchases or Substitution of Collateral Obligations.
(a) The Seller shall have the right, but not the obligation, to substitute or repurchase from the Buyer certain Collateral Obligations sold or substituted by the Issuer as provided in Article XII of the Indenture and subject to the limitations therein and other applicable provisions set forth in Article XII of the Indenture.
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Section 6.02 Reassignment of Substituted or Repurchased Collateral Obligations.
Upon (a) receipt by the Trustee for deposit in the applicable Collection Account of amounts required to be paid by the Seller in the case of any repurchased Collateral Obligation (which shall not be less than the Repurchase Price thereof) pursuant to Article XII of the Indenture (including as a result of any loan asset sold by the Seller hereunder failing to satisfy the definition of Collateral Obligation) or (b) upon the Purchase Date related to a substitute Collateral Obligation delivered by the Seller to the Buyer in accordance herewith and with the applicable provisions of the Indenture, the Buyer hereby assigns to the Seller all of the Buyer’s right, title and interest in the Collateral Obligation being repurchased or substituted (together with the Collateral and any other Assets related thereto) without recourse, representation or warranty and the Buyer will cause the Trustee to release the Lien of the Indenture with respect thereto. Such reassigned Collateral Obligation (together with the Collateral and any other Assets related thereto) shall no longer thereafter be deemed a part of the Collateral or of the Assets and shall be deemed released from the security interests created by this Agreement and by the Indenture. The Seller may amend and modify the Loan List as applicable in connection with any such repurchase or substitution by providing an updated copy thereof to the Buyer and to the Trustee. To the extent any Repurchase Price exceeds the fair market value (as determined by the Seller) of the related Collateral Obligation, such excess shall be deemed a contribution by the Seller to the Buyer.
ARTICLE VII
The Seller agrees to indemnify, defend and hold harmless the Buyer, the Trustee and any of their respective members, managers, authorized persons, officers, directors, employees, personnel and agents (any one of which is an “Indemnified Party”) from and against any and all claims, losses, penalties, fines, forfeitures, judgments, reasonable legal fees and related costs, and any other reasonable costs, fees and expenses that such Person may sustain as a result of the Seller’s fraud or the failure of the Seller to perform its duties in compliance in all material respects with the terms of this Agreement, except to the extent arising from gross negligence, willful misconduct or fraud by the Person claiming indemnification, provided that the Seller shall not be liable for any consequential (including loss of profit), indirect, special or punitive damages hereunder. Any Person seeking indemnification hereunder shall promptly notify the Seller if such Person receives a complaint, claim, compulsory process or other notice of any loss, claim, damage or liability giving rise to a claim of indemnification hereunder but failure to provide such notice shall not relieve the Seller of its indemnification obligations hereunder unless and to the extent the Seller is deprived of material substantive or procedural rights or defenses as a result thereof. The Seller shall assume (with the consent of the Indemnified Party, such consent not to be unreasonably withheld) the defense and any settlement of any such claim and pay all expenses in connection therewith, including reasonable counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against the Indemnified Party in respect of such claim. The parties agree that the provisions of this Section 7.01 shall not be interpreted to provide recourse to the Seller against loss by reason of the bankruptcy, insolvency or lack of creditworthiness of an Obligor with respect to a Collateral Obligation and that the Seller does not hereby agree to maintain the solvency of the Buyer. The Seller shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for any uncollectible or uncollected Collateral Obligation.
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Section 7.02 Liabilities to Obligors.
Except with respect to the funding commitment assumed by the Buyer with respect to any Delayed Draw Loan or Revolving Loan, no obligation or liability to any Obligor under any of the Collateral Obligations is intended to be assumed by the Buyer, the Trustee or any of the other the Secured Parties under or as a result of this Agreement and the transactions contemplated hereby.
Section 7.03 Operation of Indemnities.
If the Seller has made any indemnity payments to an Indemnified Party pursuant to this Article VII and such Indemnified Party thereafter collects any amounts from others in connection with the same matter or matters that gave rise to such indemnity payments, such Indemnified Party will repay such amounts collected to the Seller up to and including the amount of such indemnity payments.
Section 7.04 Limitation on Liability.
The Seller shall be liable under this Agreement only to the extent of the obligations specifically undertaken by it under this Agreement. Each of the Seller and any stockholder, partner, member, manager, director, officer, employee, personnel or agent thereof may rely in good faith on any document of any kind, prima facie properly executed and submitted by any Person respecting any matters arising hereunder. Each of the Seller and any stockholder, partner, member, manager, director, officer, employee, personnel or agent thereof, as applicable, shall be reimbursed by the Buyer (which shall constitute “Administrative Expenses” under the Indenture) (subject to the availability of funds in accordance with the Priority of Payments), as applicable, for any liability or expense incurred by reason of the Buyer’s willful misfeasance, bad faith or negligence (except errors in judgment) in the performance of its respective duties hereunder, or by reason of reckless disregard of its obligations and duties hereunder; provided, however that so long as it is the Collateral Manager, any such liability or expense relating to acts or omissions of the Buyer caused by reason of acts or omissions constituting bad faith, willful misconduct or gross negligence in the performance of the Collateral Manager’s duties under the Collateral Management Agreement and under the terms of the Indenture shall not be reimbursable hereunder. The Seller shall not be under any obligation to appear in, prosecute or defend any legal action that shall not be required by its obligations under this Agreement or the other Transaction Documents and that in its opinion may involve it in any expense or liability.
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ARTICLE VIII
Section 8.01 Amendments and Waivers.
(a) This Agreement may be amended or waived from time to time by the parties hereto by written agreement, with prior written notice to the Trustee, but without consent of the Holders, to (i) cure any ambiguity or to correct or supplement any provisions herein, (ii) comply with any changes in the Code, (iii) enable the Buyer to rely upon any exemption from registration under the Securities Act or the 1940 Act, (iv) enable the Buyer or the Seller to comply with any applicable securities law or U.S. Risk Retention Rules (including the regulations or interpretive guidance provided by applicable regulators implementing or interpreting any such laws or regulations), (v) conform this Agreement to the final Offering Circular, (vi) comply with any statute, rule, regulation, or technical or interpretive guidance enacted, effective, or issued by regulatory agencies of the United States federal government or any Member State of the European Economic Area or otherwise under European law, after the Refinancing Date that are applicable to the Seller, the Retention Provider, the Buyer, the Obligations or the transactions contemplated by the Indenture or by the final Offering Circular, including, without limitation, the U.S. Risk Retention Rules, securities laws or Xxxx-Xxxxx and all rules, regulations, and technical or interpretive guidance thereunder, or as may otherwise be required so that the Buyer is not a “covered fund” as defined in the Xxxxxxx Rule; and (vii) evidence the succession of another Person to the Buyer or the Seller, as applicable, and the assumption by any such successor Person of the covenants of the Buyer or the Seller, as applicable herein to the extent permitted hereunder and under the Indenture. Any other amendment or waiver to this Agreement shall be subject to the consent of a Majority of the Controlling Class; provided that no such amendment or waiver shall reduce the amount of, or delay the timing of, any amounts received on Collateral Obligations which are required to be distributed with respect to any Class of Notes or otherwise materially and adversely affect any Holders of Notes without the consent of the Holders of each Class materially and adversely affected thereby, or change the rights or obligations of any other party hereto without the consent of such party. Notwithstanding the foregoing, the Loan List may be amended and modified by the Seller at any time in accordance with this Agreement by providing an updated Loan List to the Buyer and the Trustee.
(b) Prior to the execution of any such amendment or waiver, the Buyer shall furnish to the Trustee (and the Trustee shall furnish to the Rating Agency and each Holder) written notification of the substance of such proposed amendment or waiver, together with a copy thereof.
(c) Promptly after the execution of any such amendment or waiver, the Trustee shall furnish a copy of such amendment or waiver to the Rating Agency and to each Holder. It shall not be necessary for the consent of any Holders pursuant to Section 8.01(a) to approve the particular form of any proposed amendment or consent, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization by Holders of the execution thereof shall be subject to such reasonable requirements as the Trustee may prescribe.
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(d) Prior to the execution of any amendment to this Agreement, the Buyer and the Trustee shall be entitled to receive and rely upon an Opinion of Counsel (which Opinion of Counsel may rely upon one or more certificates from an Authorized Officer of the Seller, the Buyer and/or of the Collateral Manager with respect to factual matters and of the Buyer and/or the Collateral Manager with respect to the effect of any such amendment or waiver on the economic interests of the Buyer or the Holders) stating that the execution of such amendment is authorized or permitted by this Agreement. The Trustee may, but shall not be obligated to, consent to any such amendment that affects such Trustee’s own rights, duties or immunities under this Agreement or otherwise.
(e) The Trustee, by its signature below, acknowledges and agrees to be bound by the provisions of this Section 8.01.
All notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing and mailed, e-mailed, transmitted or delivered, to the Seller at its addresses set forth below and as to the Buyer, the Trustee or the Rating Agency, at its address set forth in the Indenture or at such other address as shall be designated by such Person in a written notice to the other parties hereto. All such notices and communications shall be effective, upon receipt, or in the case of (a) notice by mail, five (5) days after being deposited in the United States mail, first class postage prepaid, (b) notice by e-mail or by facsimile mail, when electronic confirmation or verbal communication of receipt is obtained. Notices and other communications relating to this Agreement to be delivered by the Trustee to any Holder shall be delivered as provided in the Indenture.
The address for the Seller is the following unless the Seller shall designate another address in a written notice to the Buyer and the Trustee.
Monroe Capital Income Plus Corporation
c/o Monroe Capital, LLC
000 Xxxxx Xxxxxx Xxxxx
Suite 6400
Chicago, IL 60606
Attention: Xxxxxxx X. Xxxx
Email: xxxxx@xxxxxxxxx.xxx
Telephone: 000-000-0000
Section 8.03 Binding Effect; Benefit of Agreement.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Except as otherwise expressly provided herein, no third party (other than the Trustee on behalf of the Secured Parties) shall be a third party beneficiary hereof.
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Section 8.04 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF OBJECTION TO VENUE SERVICE OF PROCESS.
THIS AGREEMENT AND ALL MATTERS ARISING OUT OF OR RELATING IN ANY WAY WHATSOEVER (WHETHER IN CONTRACT, TORT OR OTHERWISE) TO THE FOREGOING SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO HEREBY AGREES TO THE NON–EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT 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.
Each of the Buyer and the Seller agrees that service of process may be effected by mailing a copy thereof by registered or certified mail, postage prepaid, to the Buyer or the Seller, as applicable, at its address specified in the signature pages to this Agreement or at such other address(es) as the Buyer or the Seller shall have notified the other in accordance with Section 8.02. Nothing in this Agreement precludes any of the parties from bringing Proceedings in any other jurisdiction, nor will the bringing of Proceedings in any one or more jurisdictions preclude the bringing of Proceedings in any other jurisdiction.
Section 8.05 WAIVER OF JURY TRIAL.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE BETWEEN THE PARTIES HERETO ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP BETWEEN ANY OF THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. INSTEAD, ANY SUCH DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
Section 8.06 Certain Taxes. The Seller shall pay on demand any and all stamp, sales, excise and other taxes and fees payable or determined to be payable to any applicable Authority in connection with the execution, delivery, filing and recording of this Agreement and the other documents to be delivered hereunder.
(a) The Seller hereby agrees not to institute against, or join, cooperate with or encourage any other Person in instituting against the Buyer any bankruptcy, reorganization, receivership, arrangement, insolvency, moratorium, winding-up or liquidation proceedings or other proceedings under federal or state bankruptcy or similar laws until at least one year and one day, or if longer, the applicable preference period then in effect plus one day, after payment in full of all Notes issued under the Indenture, provided that nothing in this Section 8.07 shall preclude, or be deemed to stop, the Seller (i) from taking any action prior to the expiration of the aforementioned one year and one day period, or if longer the applicable preference period then in effect plus one day, in (A) any case or proceeding voluntarily filed or commenced by the Buyer or (B) any involuntary insolvency proceeding filed or commenced against the Buyer by a Person other than the Seller or its Affiliates, or (ii) from commencing against the Buyer or any properties of the Buyer any legal action which is not a bankruptcy, reorganization, receivership, arrangement, insolvency, moratorium, winding-up or liquidation proceeding or other proceeding under federal or state bankruptcy or similar laws.
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(b) The provisions of this Section 8.07 shall survive the termination of this Agreement.
Section 8.08 Recourse Against Certain Parties.
(a) The obligations of the Seller and the Buyer under this Agreement and the other Transaction Documents are solely the corporate or limited liability company obligations, as applicable, of the Seller and the Buyer, respectively. No recourse shall be had for the payment of any amount owing by the Buyer or the Seller under this Agreement, any other Transaction Document or for the payment by the Buyer or the Seller of any fee in respect hereof or any other obligation or claim of or against the Buyer or the Seller arising out of or based upon this Agreement or any other Transaction Document, against any employee, personnel, officer, director, shareholder, partner, authorized person, member or manager of the Buyer or the Seller or of any Affiliate of such Person (other than the Seller or the Buyer, as applicable). The provisions of this Section 8.08(a) shall survive the termination of this Agreement.
(b) Notwithstanding any other provision of this Agreement, the obligations of the Buyer hereunder are from time to time and at any time limited recourse obligations of the Buyer payable solely from the Assets available at such time and following realization of the Assets, and application of the proceeds thereof in accordance with the Indenture, all obligations of and any claims against Buyer hereunder or in connection herewith after such realization shall be extinguished and shall not thereafter revive. No recourse shall be had against any Officer, member, manager, director, employee, shareholder, authorized person or incorporator of the Buyer or its Affiliates, successors or assigns for any amounts payable hereunder. The provisions of this Section 8.08(b) shall survive the termination of this Agreement.
(a) The Seller shall cause all financing statements and continuation statements and any other necessary documents perfecting the Buyer’s back up security interest in the applicable Collateral to be promptly recorded, registered and filed as required under this Agreement, and at all times to be kept recorded, registered and filed, all in such manner and in such places as may be required by law fully to preserve and protect the perfection and priority of the security interest granted to the Buyer in all property comprising the related Collateral. The Seller shall deliver to the Buyer the file–stamped copies of, or filing receipts for, any document recorded, registered or filed as provided above, as soon as available following such recording, registration or filing. The Seller shall cooperate fully with the Buyer in connection with the obligations set forth above and will execute any and all documents reasonably required to fulfill the intent of this Section 8.09(a).
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(b) The Seller agrees that from time to time, at its or the Seller’s expense, it will promptly execute and deliver all instruments and documents, and take all actions, that the Buyer or the Trustee on behalf of the Secured Parties, may reasonably request in order to perfect, protect or more fully evidence the applicable Purchases hereunder and the ownership and/or backup security interest granted by it in the related Collateral, as applicable.
(c) If the Seller fails to perform any of its obligations under this Section 8.09, the Buyer or the Trustee on behalf of the Secured Parties, as applicable, may (but shall not be required to) perform, or cause performance of, such obligation; and the Buyer’s and/or the Trustee’s costs and expenses incurred in connection therewith shall be payable by the Seller. The Seller irrevocably authorizes the Buyer and/or the Trustee at any time (so long as it has failed to perform its obligations hereunder) at the sole discretion thereof, and appoints each of the Buyer and the Trustee as its attorney–in–fact to act on behalf of the Seller (i) to execute on behalf of the Seller and to file financing statements on behalf of the Seller, as debtor, necessary or desirable in the sole discretion of the Buyer or the Trustee, as applicable, to perfect and to maintain the perfection and priority of the security interest of the Buyer (and its assignees) in the Collateral and (ii) to file a carbon, photographic or other reproduction of this Agreement or any financing statement with respect to the Collateral as a financing statement in such offices as the Buyer or the Trustee, as applicable, in its sole discretion deems necessary or desirable to perfect and to maintain the perfection and priority of the security interest of the Buyer (and its assignees) in the Collateral. This appointment is coupled with an interest and is irrevocable.
Section 8.10 Execution in Counterparts; Severability; Integration.
This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts (including by facsimile), each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. This Agreement, together with the Indenture and the other Transaction Documents, to the extent that a party is a signatory thereto, and any other agreements executed in connection herewith contains the final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof, superseding all prior oral or written understandings.
Section 8.11 Headings, Exhibits and Schedules.
The headings herein are for purposes of references only and shall not otherwise affect the meaning or interpretation of any provision hereof. The exhibits and schedules attached hereto and referred to herein shall constitute a part of this Agreement and are incorporated into this Agreement for all purposes.
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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 8.12 or by the Indenture or in connection with an assignment as a matter of law to the successors in interest to the Buyer or the Seller, as applicable. Simultaneously with the execution and delivery of this Agreement, the Buyer shall assign all of its right, title and interest herein to the Trustee for the benefit of the Secured Parties, to which assignment the Seller hereby expressly consents. Upon such assignment, the Seller agrees to perform its obligations hereunder that are for the benefit of the Buyer both for the benefit of the Buyer and for the benefit of the Trustee for the benefit of the Secured Parties, and the Trustee, in such capacity, shall be a third party beneficiary hereof. The Trustee on behalf of the Secured Parties after an Event of Default under and in accordance with the Indenture may enforce the provisions of this Agreement that are for the benefit of the Buyer, exercise the rights of the Buyer and enforce such obligations of the Seller hereunder without joinder of the Buyer.
Section 8.13 Duration of Agreement.
This Agreement shall continue in existence and effect until the satisfaction and discharge of the Indenture.
Any information, communication, request, demand, authorization, direction, notice, consent, waiver, report or other action provided by this Agreement to be given or performed by the Buyer shall be effective if given or performed by the Buyer or by the Collateral Manager on the Buyer’s behalf.
Nothing herein contained shall be deemed or construed to create a co-partnership or joint venture between the parties hereto.
Section 8.16 Effect of Amendment and Restatement.
On the Refinancing Date, the Original Agreement shall be and hereby is amended, restated and superseded in its entirety by this Agreement, provided, however, that the parties hereto acknowledge and agree that the sales, transfers, assignments and conveyances made, and the liens and security interests granted, under the Original Agreement are continuing and in full force and effect, and shall be governed by the terms thereof, as amended and restated by this Agreement. Upon the execution and delivery of this Agreement, the agreements and other obligations governed by the Original Agreement shall continue in full force and effect, but shall be governed by the terms and conditions set forth in this Agreement.
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective officers as of the day and year first above written.
| MONROE CAPITAL INCOME PLUS CORPORATION, | ||
| as the Seller | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: Xxxxx Xxxxxxx | ||
| Title: Authorized Signatory | ||
Monroe Capital Income Plus ABS Funding 2024-1
A&R Loan Sale Agreement
| MONROE CAPITAL INCOME PLUS ABS FUNDING II, LLC, | ||
| as the Buyer | ||
| By: | /s/ Xxxxxx X. Xxxxxxx | |
| Name: Xxxxxx X. Xxxxxxx | ||
| Title: Independent Manager | ||
Monroe Capital Income Plus ABS Funding 2024-1
A&R Loan Sale Agreement
ACKNOWLEDGED AND AGREED
SOLELY WITH RESPECT TO SECTION 8.01
u.s.
bank TRUST COMPANY, national association,
as the Trustee
| By: | /s/ Xxx X. Warn | |
| Name: Xxx X. Warn | ||
| Title: Senior Vice President | ||