AGREEMENT
Exhibit 5
EXECUTION VERSION
AGREEMENT
This Agreement, dated February 18, 2016 (this “Agreement”), is entered into by and between Fifth Street Holdings L.P., a Delaware limited partnership (“Holdings”), and Xxxxxxx X. Xxxxxxxxxx (“LT” and, together with Holdings, the “Parties” and each, a “Party”).
WHEREAS, the Parties will enter into that certain Purchase and Settlement Agreement, dated as of the date hereof (the “Purchase and Settlement Agreement”), by and among, Holdings, LT, Fifth Street Finance Corp., Fifth Street Asset Management Inc., the general partner of Holdings (the “FSAM”), RiverNorth Capital Management, LLC, RiverNorth Capital Partners, L.P., RiverNorth Institutional Partners, L.P., RiverNorth Core Opportunity Fund, RiverNorth/DoubleLine Strategic Income Fund, Xxxxx X. Xxxxxxx, Xxxx X. Xxxxxxxxxxx and Xxxxxx X. Xxxx. Capitalized terms used but not defined herein have the meanings ascribed to such terms in the Purchase and Settlement Agreement, a form of which is attached hereto as Exhibit A.
WHEREAS, in accordance with the terms and subject to the conditions of the Purchase and Settlement Agreement, Holdings and LT have agreed, on a joint and several basis, to purchase, on the Closing Date, all of the Company Shares beneficially owned by Sellers for an aggregate purchase price of $57,628,750, with each such Party agreeing to purchase a number of Purchased Shares set forth on Schedule I of the Purchase and Settlement Agreement (the amount with respect to Holdings, the “Holdings Proposed Purchases”).
| 1. | Notwithstanding the allocation of the Company Shares and the corresponding Purchase Price that is, as of the date hereof, set forth on Schedule I of the Purchase and Settlement Agreement, if FSAM determines in its sole discretion that Schedule I of the Purchase and Settlement Agreement does not, as of the date of such determination, reflect the maximum number (the “Maximum Amount”) of Company Shares that Holdings is able to purchase from Sellers at the Closing without causing a Reallocation Event (as defined below) to occur, then Holdings shall, promptly following such determination (but in any event no later than the third (3rd) Business Day prior to the Closing Date), deliver a written notice to LT revising Schedule I of the Purchase and Settlement Agreement to reallocate (each a “Reallocation”) the number of Company Shares that each Party shall purchase from Sellers at the Closing, such that, after giving effect to such Reallocation, Holdings is agreeing to purchase the Maximum Amount of Company Shares. A “Reallocation Event” shall exist if (a) Holdings does not have on-hand an amount of immediately available funds necessary to consummate the Holdings Proposed Purchases, (b) the consummation by Holdings of the Holdings Proposed Purchases would violate any of the terms or conditions of any debt or other contractual arrangement to which Holdings is a party or its property or assets are subject or (c) upon the consummation by Holdings of the Holdings Proposed Purchases, Holdings will be an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. |
| 2. | If the Parties effect a Reallocation under Section 1 of this Agreement, the Parties shall, no later than the second (2nd) Business Day prior to the Closing Date, deliver to RiverNorth Capital an amended Schedule I reflecting such Reallocation in accordance with the terms of the Purchase and Settlement Agreement. |
| 3. | Subject to the terms and conditions of the Purchase and Settlement Agreement, (a) if Holdings fails to purchase from Sellers at the Closing the number of Company Shares that, as of the Closing Date, is set forth under its name on Schedule I of the Purchase and Settlement Agreement, Holdings shall indemnify and hold LT and any of his Affiliates (other than Holdings and FSAM) harmless from and against any losses, claims, liabilities, damages or expenses that LT or any such Affiliates incurs as a result of such failure and (b) if LT fails to purchase from Sellers at the Closing the number of Company Shares that, as of the Closing Date, is set forth under his name on Schedule I of the Purchase and Settlement Agreement, LT shall indemnify and hold Holdings and FSAM and any of their respective Affiliates (other than LT) harmless from and against any losses, claims, liabilities, damages or expenses that Holdings, FSAM or any such Affiliates incurs as a result of such failure. |
| 4. | Holdings and LT agree to use their commercially reasonable efforts to fund the Additional Deposit and Schedule I shall be updated, if necessary, to appropriately reflect the overall financial contribution of each of Holdings and LT with respect to the purchase of Company Shares pursuant to the Purchase and Settlement Agreement. The allocation of Company Shares as between Holdings and LT shall be governed by the content of Schedule I as in place on the Closing Date. |
| 5. | Neither Party may assign any of its rights or obligations under this Agreement without the prior written consent of the other Party. Any waiver of any term or condition of this Agreement must be in writing and signed by the Party to be charged. This Agreement may be amended only by a written instrument duly executed by the Parties hereto or their respective permitted successors or assigns. |
| 6. | This Agreement (including Exhibit A hereto), together with the Purchase and Settlement Agreement and the Escrow Agreement, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter hereof and, except as expressly set forth in Section 3 above, is not intended to confer upon any person other than the Parties hereto any rights or remedies hereunder. |
| 7. | This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware without regard to its choice of law principles to the extent that the application of the laws of another jurisdiction would be required thereby. |
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| 8. | Each Party hereby irrevocably and unconditionally (a) submits, for itself and its property, to the exclusive jurisdiction and venue of the Delaware Court of Chancery (or, only if the Delaware Court of Chancery does not have jurisdiction over a particular matter, the Superior Court of the State of Delaware (and the Complex Commercial Litigation Division thereof if such division has jurisdiction over the particular matter), or if the Superior Court of the State of Delaware does not have jurisdiction, any federal court of the United States of America sitting in the State of Delaware) (as applicable, the “Delaware Courts”), and any appellate court from any decision thereof, in any suit, action or other proceeding with respect to the subject matter of this Agreement (each, a “Proceeding”), including the negotiation, execution or performance of this Agreement and agrees that all claims in respect of any such Proceeding shall be heard and determined in the Delaware Courts, (b) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any Proceeding with respect to the subject matter of this Agreement or the negotiation, execution or performance of this Agreement in the Delaware Courts, including any objection based on its place of incorporation or domicile, (c) waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such Proceeding in any such court and (d) agrees that a final judgment in any such Proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law. The Parties waive any right to a trial by jury with respect to any Proceeding. |
| 9. | Each of Holdings and LT acknowledge and agrees that the other Party would be irreparably harmed by a breach of this Agreement and that money damages are an inadequate remedy for an actual or threatened breach of this Agreement. Accordingly, the Parties agree to the granting of specific performance of this Agreement and injunctive or other equitable relief as a remedy for any such breach or threatened breach, without proof of actual damages, and further agree to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedy shall not be deemed to be the exclusive remedy for a breach of this Agreement, but shall be in addition to all other remedies available at law or equity. |
| 10. | All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given if so given) by hand delivery, email, facsimile, cable, telecopy or mail (registered or certified, postage prepaid, return receipt requested) to the respective Parties hereto addressed as follows: |
If to Holdings:
Fifth Street Holdings L.P.
000 Xxxx Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
Email: xxxxxxxxx@xxxxxxxxxxxxxxxxxx.xxx
If to LT:
Xxxxxxx X. Xxxxxxxxxx
c/o Fifth Street Asset Management Inc.
000 Xxxx Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
Email: xxx@xxxxxxxxxxxxxxxxxx.xxx
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| 11. | Upon the terms and subject to the conditions of this Agreement, each of the Parties hereto agrees to execute such additional documents, to use commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other Party in doing, all things necessary, proper or advisable to consummate or make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement. |
| 12. | If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated by such holding. |
| 13. | This Agreement may be executed in counterparts, including by facsimile or PDF electronic transmission, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. |
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IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement as of the day first above written.
| Fifth Street Holdings L.P. | |||
| By: |
Fifth Street Asset Management Inc., its General Partner | ||
| By: | /s/ Xxxxx X. Xxxxxxxx | ||
| Name: | Xxxxx X. Xxxxxxxx | ||
| Title: | Secretary and Senior Vice President, Legal | ||
| /s/ Xxxxxxx X. Xxxxxxxxxx | |||
| Xxxxxxx X. Xxxxxxxxxx | |||
[Signature Page to Letter Agreement]
