MASTER LOAN SALE AGREEMENT by and among Golub Capital Investment Corporation, as the Seller, GCIC CLO II DEPOSITOR LLC, as the Intermediate Seller, and GCIC CLO II LLC, as the Buyer. Dated as of December 13, 2018
Exhibit 10.5
EXECUTION VERSION
by and among
Xxxxx
Capital Investment Corporation,
as the Seller,
GCIC CLO II DEPOSITOR LLC,
as the Intermediate Seller,
and
GCIC CLO II LLC,
as the Buyer.
Dated as of December 13, 2018
Table of Contents
Page | ||||
ARTICLE I | DEFINITIONS | 1 | ||
Section 1.01 | Definitions. | 1 | ||
Section 1.02 | Other Terms. | 5 | ||
Section 1.03 | Computation of Time Periods. | 5 | ||
Section 1.04 | Interpretation. | 5 | ||
Section 1.05 | References. | 6 | ||
Section 1.06 | Calculations. | 6 | ||
ARTICLE II | TRANSFER OF LOAN ASSETS | 6 | ||
Section 2.01 | Sale, Transfer and Assignment. | 6 | ||
Section 2.02 | Purchase Price. | 11 | ||
Section 2.03 | Payment of Purchase Price. | 11 | ||
Section 2.04 | Income Collections on Closing Date Participations. | 13 | ||
Section 2.05 | Elevation of the Closing Date Participations. | 13 | ||
Section 2.06 | Limitation on Sales to Seller and Affiliates. | 14 | ||
ARTICLE III | CONDITIONS PRECEDENT | 14 | ||
Section 3.01 | Conditions Precedent | 14 | ||
Section 3.02 | Conditions Precedent to all Purchases. | 15 | ||
Section 3.03 | Release of Excluded Amounts. | 15 | ||
ARTICLE IV | REPRESENTATIONS AND WARRANTIES | 16 | ||
Section 4.01 | Representations and Warranties Regarding the Seller. | 16 | ||
Section 4.02 | Representations and Warranties of the Seller Relating to the Agreement and the Collateral. | 19 | ||
Section 4.03 | Representations and Warranties Regarding the Intermediate Seller. | 19 | ||
Section 4.04 | Representations and Warranties of the Intermediate Seller Relating to the Agreement and the Collateral. | 22 | ||
Section 4.05 | Representations and Warranties Regarding the Buyer. | 22 | ||
ARTICLE V | MISCELLANEOUS | 24 | ||
Section 5.01 | Amendments and Waivers. | 24 | ||
Section 5.02 | Notices, Etc. | 24 | ||
Section 5.03 | Severability of Provisions. | 25 | ||
Section 5.04 | GOVERNING LAW; JURY WAIVER. | 26 | ||
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Table
of Contents
(continued)
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Section 5.05 | Counterparts | 26 | ||
Section 5.06 | Bankruptcy Non-Petition and Limited Recourse; Claims. | 26 | ||
Section 5.07 | Binding Effect; Assignability. | 26 | ||
Section 5.08 | Headings and Exhibits. | 26 | ||
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Exhibit A | Form of Assignment (Schedule 2) |
Schedule 1 | Collateral Obligations |
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THIS MASTER LOAN SALE AGREEMENT, dated as of December 13, 2018 (as amended, modified, supplemented or restated from time to time, this “Agreement”), is among XXXXX CAPITAL INVESTMENT CORPORATION, a Maryland corporation (in its capacity as seller hereunder, together with its successors and assigns, the “Seller”), GCIC CLO II DEPOSITOR LLC, a Delaware limited liability company (together with its successors and assigns in its capacity as the intermediate seller hereunder, the “Intermediate Seller”), and GCIC CLO II LLC, a Delaware limited liability company (together with its successors and assigns, the “Buyer”).
WHEREAS, in the regular course of its business, the Seller originates and/or otherwise acquires Collateral Obligations; and
WHEREAS, (i) contemporaneously on the Closing Date, the Seller desires to acquire from the 2016 CLO and the Warehouse Borrower, as applicable, the Intermediate Seller desires to acquire from the Seller and the Buyer desires to acquire from the Intermediate Seller the Collateral Obligations, as listed on Schedule 1 hereto; and (ii) from time to time after the Closing Date, the Intermediate Seller may acquire from the Seller and the Buyer may acquire from the Intermediate Seller certain additional Collateral Obligations hereunder, together in each case under clause (i) or clause (ii) with certain related property as more fully described herein and included as part of the “Assets” in the Indenture, dated as of December 13, 2018 (as amended, modified, restated or supplemented from time to time, the “Indenture”), among the Buyer, as issuer, and The Bank of New York Mellon Trust Company, National Association, as trustee (together with its successors and assigns in such capacity, the “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
DEFINITIONS
Section 1.01 Definitions.
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. As used herein, the following defined terms shall have the following meanings:
“2016 CLO” means Xxxxx Capital Investment Corporation CLO 2016(M) LLC, a Delaware limited liability company.
“Agreement” has 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.
“Authorized Officer” means, with respect to the Seller or the Intermediate Seller, as applicable, any Person who is authorized to act for the Seller or the Intermediate Seller, as applicable, in matters relating thereto, and binding thereupon, in connection with the transactions contemplated by this Agreement and the other Transaction Documents to which such Person is a party.
“Buyer” has the meaning provided in the first paragraph of this Agreement.
“Closing Date Participation” has the meaning set forth in Section 2.01(c).
“Collateral” has the meaning provided in Section 2.01.
“Xxxx-Xxxxx” means the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
“Elevation” means, with respect to each Closing Date Participation, such Closing Date Participation is elevated to an assignment.
“Elevation Date” means, with respect to each Closing Date Participation, the date of its Elevation.
“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 Retained Fee retained by the Person(s) entitled thereto in connection with the origination of any Collateral Obligation and (d) 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.
“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.
“Income Collections” has the meaning set forth in Section 2.01(c).
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“Indenture” has the meaning provided in the Preamble to this Agreement.
“Intermediate Seller” has the meaning provided in the first paragraph of this Agreement.
“Lien” means any grant of a security interest in, 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 of Collateral Obligations set forth on Schedule 1, as such list may be 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.
“Net Purchased Loan Balance” means, as of any date of determination, an amount equal to the sum of (i) the Aggregate Principal Balance of all Collateral Obligations sold and/or contributed to the Buyer by the Seller (directly or indirectly) hereunder prior to such date plus (ii) the Aggregate Principal Balance of all Collateral Obligations acquired by the Buyer other than from the Seller prior to such date, in each case calculated as of the date of the Buyer’s acquisition thereof.
“Payment in Full” means payment in full of the Notes and of all other obligations then due and payable by the Buyer pursuant to and in accordance with the Indenture.
“Payment in Full Date” means the date on which a Payment in Full occurs or the Indenture is otherwise satisfied and discharged in accordance with its terms.
“Permitted Liens” means, with respect to the interest of the Seller, the Intermediate Seller and the Buyer in the Collateral Obligations, as applicable: (i) security interests, liens and other encumbrances in favor of the Intermediate Seller or of the Buyer, as applicable, pursuant to this Agreement, (ii) security interests, liens and other encumbrances in favor of the Trustee created pursuant to the Indenture and/or this Agreement, (iii) 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, (iv) with respect to any Equity Security, 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 Buyer as the holder of equity in such Obligor and (v) security interests, liens and other encumbrances for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded (provided that any reserve or other appropriate provision as shall be required in conformity with GAAP shall have been made therefor).
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“Purchase” means, as applicable, (i) a purchase or other acquisition of Collateral by the Buyer from the Intermediate Seller and by the Intermediate Seller from the Seller or (ii) a purchase or other acquisition of Collateral by the Buyer from or as directed or referred by the Seller, in each case under clause (i) or clause (ii) pursuant to Section 2.01, as applicable.
“Purchase Date” means (i) the Closing Date with respect to any Collateral Obligation acquired by the Buyer from the Intermediate Seller and by the Intermediate Seller from the Seller pursuant to the terms of this Agreement and (ii) the Closing Date or any day thereafter on which any Collateral Obligation is acquired by the Buyer from the Seller pursuant to the terms of this Agreement and including, for the avoidance of doubt, any date on which any Collateral Obligation is acquired by the Buyer in a secondary market transaction entered into by the Buyer as provided herein.
“Purchase Price” has the meaning provided in Section 2.02.
“Related Contracts” means all credit agreements, indentures, notes, security agreements, leases, financing statements, guaranties, and other contracts, agreements, instruments and other papers evidencing, securing, guaranteeing or otherwise relating to any Collateral Obligation or Eligible Investment or other investment with respect to any Collateral or proceeds thereof (including the related Underlying Instruments), together with all of the Seller’s or the Intermediate Seller’s, as applicable right, title and interest in, to and under all property or assets securing or otherwise relating to any Collateral Obligation or Eligible Investment or other investment with respect to any Collateral or proceeds thereof or of any Related Contract.
“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” has the meaning provided in the first paragraph of this Agreement.
“Trustee” has the meaning provided in the Preamble to this Agreement.
“Xxxxxxx Rule” means Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and the rules and regulations thereunder, in each case, as amended from time to time.
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“Warehouse Borrower” means GCIC Funding LLC, a Delaware limited liability company.
Section 1.02 Other Terms.
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”.
Section 1.04 Interpretation.
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;
(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
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(ix) reference to any gender includes each other gender.
Section 1.05 References.
All section references (including references to the preamble), unless otherwise indicated, shall be to Sections (and the preamble) in this Agreement.
Section 1.06 Calculations.
Except as otherwise provided herein, all interest rate and basis point calculations hereunder will be made on the basis of a 360-day year and the actual days elapsed in the relevant period and will be carried out to at least three decimal places.
ARTICLE II
TRANSFER OF LOAN ASSETS
Section 2.01 Sale, Transfer and Assignment.
(a) Transfer from the Seller to the Intermediate Seller on the Closing Date. Subject to and upon the terms and conditions set forth in this Agreement (including the conditions to purchase set forth in Article III), on the Closing Date (or, in the case of each Closing Date Participation, the Elevation Date), the Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Intermediate Seller and the Intermediate Seller hereby purchases and takes from the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of the Seller (including all obligations of the Seller as lender to fund any Revolving Collateral Obligation or Delayed Drawdown Collateral Obligation conveyed by the Seller to the Intermediate Seller hereunder which obligations the Intermediate Seller hereby assumes) in the property identified in clauses (i)-(v) below and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, general intangibles, instruments, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, accessions, proceeds and other property consisting of, arising out of, or related to any of the following (in each case excluding the Excluded Amounts) (collectively, together with any of the following relating to any Collateral Obligation conveyed pursuant to Section 2.01(d) below, the “Collateral”):
(i) the Collateral Obligations (including the Closing Date Participations and any Income Collections thereon) listed on the Loan List delivered on the Closing Date by the Seller to the Intermediate Seller (as set forth on Schedule 1), 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 such 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;
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(iii) all Related Contracts with respect to the Collateral Obligations referred to in clause (i) above;
(iv) all collateral security granted under any Related Contracts; and
(v) all income and proceeds of the foregoing.
(b) Transfers from the Intermediate Seller to the Buyer on the Closing Date. Subject to and upon the terms and conditions set forth in this Agreement (including the conditions to purchase set forth in Article III), on the Closing Date, with respect to the Collateral conveyed by the Seller to the Intermediate Seller as set forth on Schedule 1, the Intermediate Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases and takes from the Intermediate Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of the Intermediate Seller (including all obligations of the Intermediate Seller as lender to fund any Revolving Collateral Obligation or Delayed Drawdown Collateral Obligation conveyed by the Intermediate Seller to Buyer hereunder which obligations Buyer hereby assumes) in such Collateral.
(c) Closing Date Participations. It is understood and agreed by the parties hereto that certain of the Collateral Obligations being transferred hereunder from the Seller to the Buyer (through the Intermediate Seller) are not expected to settle on the Closing Date. Therefore, in order to grant the economic benefits associated with such Collateral Obligations to the Buyer on the Closing Date, (i) the Seller agrees to sell, transfer, assign, set over and otherwise convey to the Buyer, without recourse except to the extent specifically provided herein, and the Buyer agrees to purchase from the Seller, the 2016 CLO and the Warehouse Borrower, as applicable, a 100% undivided participation interest in the Seller’s, the 2016 CLO’s and the Warehouse Borrower’s, as applicable, interests in each Collateral Obligation listed on Schedule 1 and identified as a “participation” (each such Collateral Obligation, a “Closing Date Participation”), which interest shall be understood to include all the Seller’s, the 2016 CLO’s and the Warehouse Borrower’s, as applicable, right, title, benefit and interest in and to any interest accruing from and after the Closing Date, any payments, proceeds or other period distributions to the extent provided in Section 2.04 (the “Income Collections”), the legal title to which is held by the Seller, the 2016 CLO or the Warehouse Borrower, as applicable, and (ii) the Buyer hereby acquires the Closing Date Participations and assumes and agrees to perform and comply with all assumed obligations of the Seller, the 2016 CLO or the Warehouse Borrower, as applicable, with respect thereto. The parties hereby agree to treat the transfer of the Closing Date Participations by the Seller, the 2016 CLO or the Warehouse Borrower, as applicable, to the Buyer as a sale and purchase (through the Intermediate Seller and in accordance with the various steps described in this Agreement) on all of their respective relevant books and records.
(d) Transfer from the Seller to the Intermediate Seller and from the Intermediate Seller to the Buyer on each Purchase Date after the Closing Date.
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(i) Subject to and upon the terms and conditions set forth in this Agreement (including the conditions to purchase set forth in Article III), on each Purchase Date occurring after the Closing Date, with respect to the items of Collateral conveyed on such Purchase Date by the Seller to the Intermediate Seller hereunder, the Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Intermediate Seller, and the Intermediate Seller hereby purchases and takes from the Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of the Seller (including all obligations of the Seller as lender to fund any Revolving Collateral Obligation or Delayed Drawdown Collateral Obligation conveyed by the Seller to the Intermediate Seller hereunder which obligations the Intermediate Seller hereby assumes) in such Collateral.
(ii) Subject to and upon the terms and conditions set forth in this Agreement (including the conditions to purchase set forth in Article III), on each Purchase Date occurring after the Closing Date, with respect to the items of Collateral conveyed on such Purchase Date by the Intermediate Seller to the Buyer hereunder, the Intermediate Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases and takes from the Intermediate Seller all right, title and interest (whether now owned or hereafter acquired or arising and wherever located) of the Intermediate Seller (including all obligations of the Intermediate Seller as lender to fund any Revolving Collateral Obligation or Delayed Drawdown Collateral Obligation conveyed by the Intermediate Seller to the Buyer hereunder which obligations the Buyer hereby assumes) in such Collateral.
(e) From and after each Purchase Date, the Collateral listed on the relevant Loan List shall be deemed to be Collateral hereunder.
(f) 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.
(g) Except as specifically provided in this Agreement, the sale and purchase of Collateral under this Agreement shall be without recourse to the Seller or the Intermediate Seller; it being understood that the Seller and the Intermediate Seller shall be liable (individually and not jointly) to the Buyer for all representations and warranties made by the Seller and the Intermediate Seller, respectively, pursuant to the terms of this Agreement, all of which obligations are limited so as not to constitute recourse to the Seller or the Intermediate Seller for the credit risk of the Obligors.
(h) In connection with each Purchase of Collateral from the Intermediate Seller to the Buyer on and after the Closing Date as contemplated by this Agreement, the Buyer hereby directs the Intermediate Seller to, and the Intermediate Seller hereby directs the Seller to, and the Seller agrees that it will, Deliver in accordance with the Indenture, or cause to be Delivered in accordance with the Indenture (on behalf of the Buyer), to the Custodian (with a copy to the Trustee), each Collateral Obligation being transferred to the Buyer on such Purchase Date in accordance with the applicable provisions of the Indenture.
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(i) The Seller and/or the Intermediate Seller, as applicable, 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.
(j) In connection with the Purchase by the Buyer of the Collateral as contemplated by this Agreement, (i) with respect to the Collateral Purchased on the Closing Date in accordance with this Agreement, each of the Seller and the Intermediate Seller, as applicable, agrees that it will, at its own expense, indicate clearly and unambiguously in its computer files on and after the Closing Date that such Collateral has been purchased by the Intermediate Seller and/or the Buyer, as applicable, (ii) with respect to the Collateral purchased on and after the Closing Date from the Intermediate Seller to the Buyer in accordance with this Agreement, each of the Seller and the Intermediate Seller, as applicable, 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 Intermediate Seller and/or the Buyer, as applicable, and in each case under clause (i) or clause (ii), 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.
(k) The Seller agrees to deliver to the Intermediate Seller and the Buyer on or before the Closing Date and to the Intermediate Seller and the Buyer on or before each Purchase Date after the Closing Date a computer file containing a true, complete and correct Loan List (which shall contain the related Principal Balance, outstanding principal balance, loan number and Obligor name for each Collateral Obligation) as of the Closing Date or related Purchase Date, as applicable. Such file or list shall be marked as Schedule 1 or Schedule 2, as applicable, to this Agreement, shall be delivered to the Intermediate Seller and/or the Buyer, as applicable, as confidential and proprietary, and is hereby incorporated into and made a part of this Agreement, as such Schedule 1 or Schedule 2 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 after the Closing Date (through the Intermediate Seller and in accordance with the various steps described in this Agreement), the Seller shall deliver to the Buyer (through the Intermediate Seller) an assignment of such Collateral Obligation substantially in the form of Exhibit A hereto.
(l) In a series of contemporaneous transactions on the Closing Date (i) each of the 2016 CLO and the Warehouse Borrower, as applicable, shall, subject to the terms of the applicable indenture or credit facility, if any, sell and/or distribute the Collateral Obligations owned by the 2016 CLO and the Warehouse Borrower, as applicable, listed on Schedule 1 to the Seller (with respect to any distribution, in its capacity as sole member of the Warehouse Borrower), (ii) the Seller shall transfer the Collateral Obligations (as set forth on Schedule 1) to the Intermediate Seller, (iii) the Intermediate Seller shall transfer the Collateral Obligations listed on Schedule 1 to the Buyer and (iv) as consideration for its acquisition of the Collateral Obligations listed on Schedule 1 from the Intermediate Seller, the Buyer shall distribute to the Intermediate Seller all of the Class B-2 Notes, all of the Class C Notes, all of the Class D Notes, a portion of the Subordinated Notes and the proceeds from the issuance of the other classes of Secured Notes.
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(m) For administrative convenience, (i) Collateral Obligations being transferred from the Seller to the Intermediate Seller and from the Intermediate Seller to the Buyer may settle directly from the Seller to the Buyer, (ii) Collateral Obligations being transferred first from the Seller to the Intermediate Seller and second from the Intermediate Seller to the Buyer may settle directly from the Seller to the Buyer, (iii) Collateral Obligations being acquired by the Seller from any seller and then sold first by such seller to the Seller and second by the Seller to the Intermediate Seller and third from the Intermediate Seller to the Buyer may settle directly from such seller to the Buyer and (iv) any of the steps or transfers of cash or assets described in this clause (m) that take place on the same day may be made on a net basis (any amounts owing by one party may be offset by amounts owed to such party, and vice versa).
(n) 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 Intermediate Seller and to the Intermediate Seller by the Seller as provided in this Section 2.01 is intended and shall, in each and every case, constitute an absolute sale, assignment, conveyance and transfer of ownership of such Collateral conveying good title, free and clear of any Lien (other than Permitted Liens) and that the Collateral shall not be part of the Seller’s or the Intermediate Seller’s, as applicable, bankruptcy estate in the event of any bankruptcy or insolvency proceedings with respect to the Seller or the Intermediate Seller, as applicable. Furthermore, it is not intended that any such conveyance be deemed a pledge of the Collateral Obligations and the other Collateral to the Intermediate Seller or the Buyer, as applicable, to secure a debt or other obligation of the Intermediate Seller or the Seller, as applicable.
(o) If, however, notwithstanding the intention of the parties set forth in Section 2.01(n), any of the conveyances provided for in this Section 2.01 by the Seller or the Intermediate Seller, as applicable, are determined to be a transfer to secure indebtedness, then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC. With respect to the Collateral related to Schedule 1 hereunder, (A) the Seller hereby grants to the Intermediate Seller (and the Intermediate Seller hereby assigns to the Buyer), and the Intermediate Seller hereby grants to the Buyer, as the case may be, 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, (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, the Intermediate Seller authorizes the Buyer, and, so long as the Payment in Full Date has not occurred, each of the Seller and Intermediate Seller authorize the Trustee on behalf of the Secured Parties to file UCC financing statements and amendments, as necessary, naming the Seller as “debtor,” the Intermediate Seller as “debtor” or “assignor secured party,” as applicable, the Buyer as “assignor secured party” or “assignee 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(o).
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(p) The Seller, the Intermediate Seller and the Buyer hereby acknowledge and agree that (i) the conveyance of the Closing Date Participations is being effectuated pursuant to this Agreement instead of an assignment of the Seller’s, the 2016 CLO’s or the Warehouse Borrower’s, as applicable, legal interest in and title to each of the Closing Date Participations (the transfer of which to the Buyer will not be effective until the individual assignments of each Closing Date Participation become effective) because the conditions precedent under the related Underlying Instruments to the transfer, assignment and conveyance of the Seller’s, the 2016 CLO’s or the Warehouse Borrower’s, as applicable, legal interest in and title to the Closing Date Participations may otherwise not be fully satisfied as of the Closing Date and (ii) the conveyance of the Closing Date Participations hereunder shall have the consequence that the Seller, the 2016 CLO or the Warehouse Borrower, as applicable, does not have an equitable interest in the Closing Date Participations and the Buyer holds 100% of the equitable interest in the Closing Date Participations. The Buyer has prepared individual assignments consistent with the requirements of the related Underlying Instruments and provided them to the Persons required under such Underlying Instruments, which assignments will become effective in accordance with such Underlying Instruments upon obtaining certain consents thereto or upon the passage of time or both. Upon receipt by the Seller or the Buyer of the effective assignment of any Closing Date Participation participated pursuant to this Section 2.01, the Seller, for value received, hereby sells to the Intermediate Seller, and the Intermediate Seller hereby purchases from the Seller, and the Intermediate Seller, for value received, hereby sells to the Buyer, and the Buyer hereby purchases from the Intermediate Seller, all of the Seller’s, the Warehouse Borrower’s, the 2016 CLO’s or Intermediate Seller’s, as applicable, right, title and interest in, to and under such Closing Date Participation.
Section 2.02 Purchase Price.
The purchase price for each Collateral Obligation sold pursuant to this Master Loan Sale Agreement shall be a dollar amount equal to the fair market value thereof as determined by the Seller, the Intermediate Seller and/or the Buyer, as applicable, and shall be on terms no less favorable to the buyer than such buyer would then 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 related to Schedule 1 acquired by the Buyer from the Intermediate Seller (including the Closing Date Participations) on the Closing Date shall be paid by a combination of cash and the issuance of all of the Class B-2 Notes, all of the Class C Notes, all of the Class D Notes and a portion of the Subordinated Notes by the Buyer to the Intermediate Seller and by subsequent transfer of such cash from the Intermediate Seller to the Seller. With respect to any Purchase Date after the Closing Date, to the extent the value of the Collateral transferred by the Seller to the Intermediate Seller and from the Intermediate Seller to the Buyer exceeds the value of the cash and the Class B-2 Notes, the Class C Notes, the Class D Notes and such portion of the Subordinated Notes received by the Intermediate Seller or Seller (as applicable) for such assets, such excess shall be deemed to constitute a capital contribution from the Seller to the Intermediate Seller and from the Intermediate Seller to the Buyer. To the extent the value of the cash and the Class B-2 Notes, the Class C Notes, the Class D Notes and such portion of the Subordinated Notes received by the Intermediate Seller or Seller (as applicable) from the Buyer exceeds the value of the assets transferred by the Seller to the Intermediate Seller and by the Intermediate Seller to the Buyer, such excess shall be deemed to constitute a dividend from the Buyer to the Intermediate Seller and the Intermediate Seller to the Seller. The Purchase Price for any Collateral acquired by the Buyer from the Intermediate Seller on any Purchase Date after the Closing Date pursuant to this Agreement shall be paid in a combination of (A) immediately available funds in cash and by subsequent transfer of such cash from the Intermediate Seller to the Seller 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 capital contribution by the Seller to the Intermediate Seller and by a subsequent capital contribution by the Intermediate Seller to the Buyer.
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(b) The Purchase Price for any Collateral purchased by the Buyer to be settled directly with a subsidiary of the Seller on any Purchase Date after the Closing 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, amounts contributed by the Seller to Intermediate Seller and by the Intermediate Seller to the Buyer.
(c) Notwithstanding any provision herein to the contrary, the Seller may on any Purchase Date occurring after the Closing Date elect to designate all or a portion of the Collateral proposed to be transferred to the Buyer on such date as a capital contribution to the Intermediate Seller and in turn a capital contribution by the Intermediate Seller 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 capital shall constitute Collateral for all purposes of this Agreement.
(d) 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 on and as of such day, with the same effect as though made on and as of such day.
(e) Upon the payment of the Purchase Price for any Purchase, title to the Collateral included in such Purchase shall vest in the case of Collateral related to Schedule 1 initially in the Intermediate Seller and then 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 Intermediate Seller and the Buyer, as applicable, shall not be deemed to have waived any claim it may have under this Agreement for the failure by the Seller or the Intermediate Seller, as applicable, in fact to satisfy any such condition precedent, covenant or agreement.
(f) 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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Section 2.04 Income Collections on Closing Date Participations.
(a) With respect to each Closing Date Participation, the Buyer shall acquire all rights to Income Collections that, as of the Closing Date, are accrued but unpaid with respect to the period from and after the Closing Date.
(b) If at any time after the Closing Date the Seller receives any Income Collections, the Seller shall deliver such Income Collection promptly to the Buyer. If at any time after the Closing Date the Seller receives any other payment (including principal, interest (to the extent relating to the period from and after the Closing Date) or any other amount) with respect to a Closing Date Participation, the Seller shall deliver such payment promptly to the Buyer, and in the case of any such payment of interest, the Seller shall provide a written notice to the Buyer at the time of such delivery setting forth calculations and certifying as to the portion of any interest received that relates to the period from and after the Closing Date.
(c) Without limiting the foregoing, the Seller agrees (i) until the Elevation of each Closing Date Participation has been completed, to maintain its existing custodial arrangements and bank accounts established to receive proceeds of such Closing Date Participation and (ii) to remit to the Buyer, promptly (but not more than three Business Days) after receipt of such payment and identification thereof, each payment received in connection with each Closing Date Participation to which the Buyer is entitled in accordance with Section 2.01.
Section 2.05 Elevation of the Closing Date Participations.
(a) Subject to the terms and provisions of the applicable Closing Date Participation and of applicable law, the Seller shall use commercially reasonable efforts to effect an Elevation, as soon as reasonably practicable, with respect to each such Closing Date Participation and take such action (including the execution and delivery of an assignment agreement) as shall be mutually agreeable in connection therewith and in accordance with the terms and conditions of each such Closing Date Participation and consistent with the terms of this Agreement. The Seller shall pay any transfer fees and other expenses payable in connection with an Elevation and the Buyer will reimburse the Seller for half of such fees and expenses after receipt of an invoice therefor from the Seller detailing such amounts. The Buyer shall be responsible for any expenses of administering each Closing Date Participation prior to its Elevation. At Elevation, the Seller shall deliver such assignment and the credit documentation with respect to the related Closing Date Participation in its possession to or as directed by the Buyer.
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(b) If the Seller has not effected an Elevation of a Collateral Obligation on or before the day that is 90 days from the Closing Date for whatever reason or if at any time prior thereto the Seller is dissolved prior to effecting an Elevation, the Seller and the Buyer agree that the Participation Interests in each of the Closing Date Participations shall elevate automatically and immediately to an assignment and all of the Seller’s rights, title, interests and ownership of such Closing Date Participations shall vest in Buyer. The Seller shall be deemed to have consented and agreed to Elevation for each of the Closing Date Participations upon the execution of this Agreement. The Seller agrees that, following any such date, the Buyer shall be permitted to take any and all action necessary to effectuate an Elevation and/or finalize an assignment of any of the Closing Date Participations, and in furtherance of the foregoing, effective immediately upon such date, the Seller hereby makes, constitutes and appoints the Buyer, with full power of substitution, as its true and lawful agent and attorney-in-fact, with full power and authority in its name, place and stead, to sign, execute, certify, swear to, acknowledge, deliver, file, receive and record any and all documents that the Buyer reasonably deems appropriate or necessary in connection with any Elevation or finalization of an assignment of any of the Closing Date Participations. In addition, the Seller, effective as of the date hereof, hereby makes, constitutes and appoints the Buyer, with full power of substitution, as its true and lawful agent and attorney-in-fact, with full power and authority in its name, place and stead, to sign, execute, certify, swear to, acknowledge, deliver, file, receive and record any and all documents that the Buyer reasonably deems appropriate or necessary to direct the obligor or agent bank with respect to any Closing Date Participations to deposit Income Collections directly into an account chosen by the Buyer. The foregoing powers of attorney are hereby declared to be irrevocable and a power coupled with an interest, and shall survive and not be affected by the bankruptcy or insolvency or dissolution of the Seller.
Section 2.06 Limitation on Sales to Seller and Affiliates.
At any time after the Closing Date, the Buyer may sell any Collateral Obligation to the Seller or any affiliate thereof; provided that such transaction is conducted in an arm’s length transaction in the ordinary course of business and the value of any such transferred Collateral Obligation shall be the mid-point between the “bid” and “ask” prices provided by a nationally recognized independent pricing service or, if unavailable or determined by the Collateral Manager to be unreliable, the fair market value of such Collateral Loan as reasonably determined by the Collateral Manager, and such Affiliate shall acquire such Collateral Loan for a price equal to the value so determined; provided further that an aggregate amount of Collateral Obligations not exceeding 15% of the Net Purchased Loan Balance may be sold or otherwise transferred to the Seller or a non-special purpose entity affiliate of the Seller.
ARTICLE III
Section 3.01 Conditions Precedent
This Agreement is subject to the conditions precedent that on or prior to the Closing 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, the Intermediate Seller and the Buyer; and
(b) The Seller shall have delivered to the Buyer filed UCC-1 financing statements as required by Section 2.01(o) 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(o).
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Section 3.02 Conditions Precedent to all Purchases.
(a) The obligation of the Intermediate Seller to purchase the Collateral from the Seller and the obligation of the Buyer to purchase the Collateral from the Intermediate Seller, in each case on the Closing Date, shall be subject to the satisfaction of the following conditions precedent that:
(i) all representations and warranties (A) of the Seller contained in Sections 4.01 and 4.02 and (B) of the Intermediate Seller contained in Sections 4.03 and 4.04, as applicable, shall be true and correct in all material respects on and as the Closing 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); and
(ii) the Seller shall have delivered to the Intermediate Seller and the Buyer duly completed Loan Lists that are true, accurate and complete in all respects as of the Closing Date, which lists are made a part of this Agreement.
(b) The obligation of the Intermediate Seller to purchase the Collateral from the Seller and the obligation of the Buyer to purchase the Collateral from the Intermediate Seller on any Purchase Date after the Closing Date shall be subject to the satisfaction of the following conditions precedent that:
(i) all representations and warranties (A) of the Seller contained in Sections 4.01 and 4.02 and (B) of the Intermediate Seller contained in Sections 4.03 and 4.04, as applicable, 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); and
(ii) the Seller shall have delivered to the Intermediate Seller and 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, as applicable.
Section 3.03 Release of Excluded Amounts.
The parties acknowledge and agree that each of the Intermediate Seller and the Buyer has no interest in the Excluded Amounts. Promptly upon the receipt by or release to the Intermediate Seller or the Buyer, as applicable, of any Excluded Amounts, each of the Intermediate Seller and 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 Intermediate Seller or the Buyer, as applicable; provided that each of the Intermediate Seller and the Buyer respectively 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.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties Regarding the Seller.
The Seller makes the following representations and warranties, on which each of the Intermediate Seller and the Buyer relies in acquiring the Collateral purchased hereunder and each of the Secured Parties relies upon in entering into the Indenture or purchasing the Notes. As of the Closing Date and each Purchase Date (unless a specific date is specified below), the Seller represents and warrants to the Intermediate Seller and the Buyer for the benefit of the Intermediate Seller and the Buyer and each of their successors and assigns that:
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Section 4.02 Representations and Warranties of the Seller Relating to the Agreement and the Collateral.
The Seller makes the following representations and warranties, on which each of the Intermediate Seller and the Buyer relies in acquiring each Collateral Obligation purchased hereunder and each of the Secured Parties relies upon in entering into the Indenture or purchasing the Notes. As of the Closing Date and each Purchase Date, the Seller represents and warrants to the Intermediate Seller and the Buyer, as applicable, for the benefit of the Intermediate Seller and the Buyer and each of their successors and assigns that:
It is understood and agreed that the representations and warranties provided in this Section 4.02 shall survive (x) the sale of the Collateral Obligations to the Intermediate Seller or the Buyer, as applicable, (y) the grant of a first priority perfected security interest in, to and under each Collateral Obligation pursuant to the Indenture by the Buyer and (z) the termination of this Agreement and the Indenture. Upon discovery by the Seller, the Intermediate 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 and to the Trustee (who shall forward such notice to the Holders) immediately upon obtaining knowledge of such breach.
Section 4.03 Representations and Warranties Regarding the Intermediate Seller.
As of the Closing Date, the Intermediate 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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The representations and warranties set forth in this Section 4.03 shall survive the sale, transfer and assignment of the Collateral Obligations by the Intermediate Seller to the Buyer on or after the Closing Date.
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Section 4.04 Representations and Warranties of the Intermediate Seller Relating to the Agreement and the Collateral.
The Intermediate Seller hereby represents and warrants to the Buyer, as of the Closing Date that:
Section 4.05 Representations and Warranties Regarding the Buyer.
By its execution of this Agreement, the Buyer represents and warrants to the Intermediate Seller and the Seller that:
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ARTICLE V
Section 5.01 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; 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 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. Failure to object within ten Business Days of notice being given of any proposed amendment shall constitute consent for all purposes hereunder. Notwithstanding the foregoing, the Loan Lists may be amended and modified by the Seller at any time in accordance with this Agreement by providing updated Loan Lists 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 each 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 Buyer shall furnish (or cause the Trustee to furnish) a copy of such amendment or waiver to each Rating Agency and to each Holder. It shall not be necessary for the consent of any Holders pursuant to Section 5.01(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.
(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 Intermediate Seller, the Buyer and/or 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.
Section 5.02 Notices, Etc.
All demands, notices and other communications hereunder shall, unless otherwise stated herein, be in writing (which shall include facsimile communication and communication by e-mail in portable document format (.pdf)) and faxed, e-mailed or delivered, 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 parties hereto, and to the Trustee or each 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. Notices and communications by facsimile and e-mail shall be effective when sent (and shall be followed by hard copy sent by regular mail), and notices and communications sent by other means shall be effective when received. Notices and other communications relating to this Agreement to be delivered by the Buyer (or the Trustee on its behalf) to any Holder shall be delivered as provided in the Indenture.
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The address for the Seller is the following:
Xxxxx Capital Investment
Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
E-mail: xxxxxx@xxxxxxxxxxxx.xxx
Facsimile No.: (000) 000-0000
The address for the Intermediate Seller is the following:
GCIC CLO II Depositor
LLC
c/o Golub Capital Investment Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
E-mail: xxxxxx@xxxxxxxxxxxx.xxx
Facsimile No.: (000) 000-0000
The address for the Buyer is the following:
GCIC CLO II LLC
c/o Golub Capital Investment Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
E-mail: xxxxxx@xxxxxxxxxxxx.xxx
Facsimile No.: (000) 000-0000
with a copy to:
GCIC CLO II LLC
c/o Puglisi & Associates
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
E-mail: xxxxxxxx@xxxxxxxxxxxx.xxx
Facsimile No.: (000) 000-0000
Section 5.03 Severability of Provisions.
If any one or more of the covenants, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, provisions or terms shall be deemed severable from the remaining covenants, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement.
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Section 5.04 GOVERNING LAW; JURY WAIVER.
THIS AGREEMENT SHALL, IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING DIRECTLY OR INDIRECTLY OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREUNDER.
Section 5.05 Counterparts.
For the purpose of facilitating the execution of this Agreement and for other purposes, this Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and all of which counterparts shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or e-mail in portable document format (.pdf) shall be effective as delivery of a manually executed counterpart of this Agreement.
Section 5.06 Bankruptcy Non-Petition and Limited Recourse; Claims.
Each of the parties hereto hereby agrees that it will not institute against, or join any other Person in instituting against, the other party hereto any bankruptcy proceeding so long as there shall not have elapsed one year and one day (or such longer preference period as shall then be in effect and one day) after payment in full of all Notes. In addition, none of the parties hereto shall have any recourse for any amounts payable or any other obligations arising under this Agreement against any officer, member, director, employee, partner, Affiliate or security holder of the other party or any of its successors or assigns. The terms of this Section 5.06 shall survive termination of this Agreement.
Section 5.07 Binding Effect; Assignability.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. No third party (other than the Trustee and the other Secured Parties) shall be third-party beneficiaries of this Agreement.
Section 5.08 Headings and Exhibits.
The headings herein are for purposes of references only and shall not otherwise affect the meaning or interpretation of any provision hereof. 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.
[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.
XXXXX CAPITAL INVESTMENT CORPORATION, | ||
as the Seller | ||
By: | /s/ Xxxx X. Xxxxx | |
Name: Xxxx X. Xxxxx | ||
Title: Chief Financial Officer |
GCIC CLO II DEPOSITOR LLC, | ||
as the Intermediate Seller | ||
By: | Xxxxx Capital Investment Corporation, its designated manager | |
By: | /s/ Xxxx X. Xxxxx | |
Name: Xxxx X. Xxxxx | ||
Title: Chief Financial Officer |
GCIC CLO II LLC, | ||
as the Buyer | ||
By: | Xxxxx Capital Investment Corporation, its designated manager | |
By: | /s/ Xxxx X. Xxxxx | |
Name: Xxxx X. Xxxxx | ||
Title: Chief Financial Officer |
Exhibit A
Form of Assignment (Schedule 2)
[Date]
In accordance with the Master Loan Sale Agreement (together with all amendments and modifications from time to time thereto, the “Agreement”), dated as of December 13, 2018, made by and among the undersigned, XXXXX CAPITAL INVESTMENT CORPORATION, as the Seller (together with its successors and permitted assigns, the “Seller”), GCIC CLO II Depositor LLC, as the Intermediate Seller (together with its successors and permitted assigns, the “Intermediate Seller”), and GCIC CLO II LLC, as the Buyer (together with its successors and permitted assigns, the “Buyer”), the Seller does hereby sell, transfer, convey and assign, set over and otherwise convey to the Intermediate Seller, all of the Seller’s right, title and interest in and to the following (including, without limitation, all obligations of the lender to fund any Revolving Collateral Obligation or Delayed Drawdown Collateral Obligation conveyed by the undersigned to the Intermediate Seller hereunder which obligations the Intermediate Seller hereby assumes), and the Intermediate Seller does hereby sell, transfer, convey and assign, set over and otherwise convey to the Buyer, all of the Intermediate Seller’s right, title and interest in and to the following (including, without limitation, all obligations of the lender to fund any Revolving Collateral Obligation or Delayed Drawdown Collateral Obligation conveyed by the undersigned to the Buyer hereunder which obligations the Buyer hereby assumes):
(i) the Collateral Obligations listed on Schedule 2 attached hereto (which Schedule 2 is hereby incorporated by reference in and shall become part of the Loan List referred to as Schedule 1 in the Agreement), all payments paid in respect thereof and all monies due, to become due or paid in respect thereof accruing on and after the Purchase Date and all collections on the Collateral Obligations and other recoveries thereon, in each case as they arise after the Purchase Date;
(ii) all Liens with respect to the Collateral Obligations referred to in clause (i) above;
(iii) all Related Contracts with respect to the Collateral Obligations referred to in clause (i) above;
(iv) all collateral security granted under any Related Contracts; and
(v) all income, payments, proceeds and other benefits of any and all of the foregoing, including but not limited to, all accounts, cash and currency, chattel paper, electronic chattel paper, tangible chattel paper, copyrights, copyright licenses, equipment, fixtures, general intangibles, instruments, commercial tort claims, deposit accounts, inventory, investment property, letter of credit rights, software, supporting obligations, accessions, proceeds and other property consisting of, arising out of, or related to the foregoing, but excluding any Excluded Amount with respect thereto.
Capitalized terms used herein have the meaning given such terms in the Agreement.
Ex. A-1 |
This assignment is made pursuant to and in reliance upon the representations and warranties on the part of the undersigned contained in Article IV of the Agreement and no others.
THIS ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Ex. A-2 |
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly executed on the date written above.
XXXXX CAPITAL INVESTMENT CORPORATION, | |
as the Seller |
By: | |||
Name: | |||
Title: |
GCIC CLO II DEPOSITOR LLC, | ||
as the Intermediate Seller | ||
By: | Xxxxx Capital Investment Corporation, its designated manager |
By: | |||
Name: | |||
Title: |
GCIC CLO II LLC, | ||
as the Buyer | ||
By: | Xxxxx Capital Investment Corporation, its designated manager |
By: | |||
Name: | |||
Title: |
Ex. A-3 |
Schedule 2
Loan List
[To be attached]
Ex. A-4 |
Schedule 1
Collateral Obligations
Loan List