Optional Sales. The Borrower may on any Optional Sale Date, prepay all or portion of the Advances Outstanding in connection with the sale or other transfer of all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing (each, an “Optional Sale”), without the consent of the Administrative Agent; so long as (i) except as otherwise agreed by the Administrative Agent pursuant to Section 2.07(j)(i)(A), the Borrower shall have provided to the Administrative Agent (with a copy to the Collateral Agent, the Collateral Administrator and the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice of its intent to effect an Optional Sale on the Optional Sale Date, (ii) the purchase price in cash deposited in the Collection Account with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of such Optional Sale shall be deposited into the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative Agent, in its sole and absolute discretion (upon the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Sale.
Appears in 5 contracts
Sources: Loan and Servicing Agreement (TCG Bdc, Inc.), Loan and Servicing Agreement (TCG Bdc, Inc.), Loan and Servicing Agreement (Carlyle GMS Finance, Inc.)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion (including, for the avoidance of doubt, pursuant to participation agreements or other agreements to effectuate assignments following an initial transfer of a participation interest or other portion of a Collateral Asset) of the Loan Collateral Assets in connection with a Permitted Securitization or a Permitted Refinancing (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except as Unless otherwise agreed consented to by the Administrative Agent pursuant (in its sole discretion), immediately after giving effect to such Optional Sale:
(A) no Borrowing Base Deficiency or Currency Asset Amount Shortfall exists or would occur as a result of such Optional Sale; provided that the Borrower may sell Collateral Assets as necessary to facilitate a cure of a Borrowing Base Deficiency (and any Default arising therefrom) in accordance with Section 2.07(j)(i)(A2.03(b);
(B) no Default, Event of Default, Unmatured Servicer Termination Event or Servicer Termination Event shall have occurred and be continuing; provided that the Borrower may sell Collateral Assets as necessary to facilitate a cure of a Borrowing Base Deficiency (and any Default arising therefrom) in accordance with Section 2.03(b);
(C) during the immediately preceding twelve (12) month period, the Borrower will not have sold Collateral Assets (other than Warranty Collateral Assets) in Optional Sales with an Aggregate Adjusted Principal Balance in excess of 20% of the Aggregate Adjusted Principal Balance as of the first day of such period; and
(D) the Borrower will not have distributed or sold Parent Collateral Assets to the Borrower Parent or any Controlled Affiliate thereof (other than Warranty Collateral Assets) in Optional Sales with an aggregate Principal Balance in excess of 20% (or 10% in the case of Defaulted Obligations) of the Net Purchased Loan Balance;
(ii) at least two (2) Business Days prior to the date of any Optional Sale, the Servicer, on behalf of the Borrower, shall have provided to give the Administrative Agent (with a copy to the Collateral Agent, the Collateral Administrator and the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior Custodian written notice of its intent to effect an such Optional Sale, which notice shall identify the related Collateral Assets subject to such Optional Sale on and the expected proceeds from such Optional Sale Date, and shall include (iix) a Borrowing Base Certificate and (y) a certificate of the purchase price in cash deposited Servicer substantially in the Collection Account with respect to form of Exhibit E-2 requesting the Optional Sale is at least equal to the aggregate Outstanding Loan Balance release of the Loan Assets being sold and purchased related Collateral Asset File in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), such Optional Sale;
(iii) 100% of the net proceeds of such Optional Sale shall be made by the Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) reflecting arm’s-length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is (x) to an Affiliate of the Borrower or the Servicer or (y) at a price less than the Adjusted Principal Balance of such Collateral Asset, the Administrative Agent has given its prior written consent; and
(v) on the date of such Optional Sale, all proceeds from such Optional Sale (x) will be deposited directly into the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (ivy) no event has occurred and is continuingwith respect to any sold Collateral Asset, or would result will be in the same Eligible Currency as such Collateral Asset.
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and Sale into the Agreement are satisfied in fullCollection Account, the Administrative Agent, in its sole Agent shall be deemed to release and absolute discretion (upon the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable transfer to the Loan Assets Borrower without recourse, representation or warranty all of the right, title and interest of the Administrative Agent for the benefit of the Secured Parties in, to and under such Collateral Asset(s) and related Collateral subject to an such Optional Sale.Sale and such
Appears in 2 contracts
Sources: Credit Agreement (Lord Abbett Private Credit Fund), Credit Agreement (Lord Abbett Private Credit Fund)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), subject to the following terms and conditions:
(i) immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied or, if not satisfied immediately prior to such Optional Sale, the extent of compliance will be improved;
(B) the Minimum Equity Test is satisfied;
(C) the Borrowing Base is greater than or equal to the Advances outstanding;
(D) no Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default shall have occurred and be continuing; provided that, if an Unmatured Event of Default or Unmatured Servicer Default is continuing, the Borrower may make an Optional Sale if, after giving effect to such Optional Sale, such event is cured (although, for the avoidance of doubt, such event shall be continuing for all purposes hereunder until the settlement date of such Optional Sale) and, after the end of the Revolving Period, such Optional Sale is for a purchase price equal to the greater of (x) the Purchase Price of such Collateral Obligation as of the Cut-Off Date and (y) 95.0% of par; and
(E) during the immediately preceding twelve (12) month period, without the prior written consent of the Administrative Facility Agent in its sole discretion, the Borrower will not have sold Collateral Obligations in Optional Sales with an aggregate Collateral Obligation Amount in excess of 35% of the highest Aggregate Eligible Collateral Obligation Amount as of any day during such period; provided, that the Borrower may, during the Revolving Period, make any Optional Sale of any Collateral Obligation that, in the Servicer’s reasonable judgment, has a significant risk of declining in credit quality and, with the lapse of time, becoming a Defaulted Collateral Obligation, if after giving effect to such Optional Sale both (x) no Unmatured Event of Default or Event of Default is continuing and (y) the aggregate Collateral Obligation Amount of Collateral Obligations sold pursuant to this proviso does not exceed, during the immediately preceding twelve (12) month period, 10% of the highest Aggregate Eligible Collateral Obligation Amount as of any day during such period;
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Servicer, on behalf of the Borrower, shall give the Facility Agent, the Collateral Custodian and the Collateral Agent written notice of such Optional Sale, which notice shall identify the related Collateral subject to such Optional Sale and the expected proceeds from such Optional Sale and include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating that the Borrowing Base is greater than or equal to the aggregate principal amount of all Advances outstanding and (y) a certificate of the Servicer substantially in the form of Exhibit F-3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iii) such Optional Sale shall be made by the Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Servicer, the Facility Agent has given its prior written consent; so long as provided that such consent shall not be required (A) if such sale is for a purchase price at least equal to the greatest of (i) except the Purchase Price, (ii) the Collateral Obligation Amount and (iii) the fair market value (as otherwise agreed determined based upon prices reported on one or more recognized, independent pricing services selected by the Administrative Agent pursuant Servicer) or (B) during the Revolving Period, if (x) any Collateral Obligation does not meet the definition of “Eligible Collateral Obligation” and has a Collateral Obligation Amount of zero and (y) such Optional Sale is to Section 2.07(j)(i)(A)the Equityholder, then such sale may be treated as a return of capital to the Equityholder without payment of a purchase price in cash from the Equityholder to the Borrower; and
(v) on the date of such Optional Sale, all proceeds from such Optional Sale will be deposited directly into the Collection Account.
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Borrower Collateral Agent shall have provided be deemed to release and transfer to the Administrative Borrower without recourse, representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(with a copy c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Facility Agent, the Collateral Agent, the Collateral Administrator Custodian, each Agent and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice Agent, on behalf of its intent to effect an Optional Sale on the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance portion of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of Collateral subject to such Optional Sale shall be deposited into to the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative AgentBorrower, in its sole and absolute discretion (upon recordable form if necessary, as the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), Borrower may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salereasonably request.
Appears in 2 contracts
Sources: Loan Financing and Servicing Agreement (MSD Investment Corp.), Loan Financing and Servicing Agreement (MSD Investment Corp.)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent following terms and conditions:
(i) immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied (or, (1) if (x) any Collateral Quality Test (other than the Minimum Diversity Test) is not satisfied it is maintained or improved and (y) the Minimum Diversity Test is satisfied, or (2) the Facility Agent shall have consented to such sale, in its sole discretion);
(B) the Minimum Equity Test is satisfied;
(C) the Borrowing Base is greater than or equal to the Advances outstanding; and
(D) no Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default shall have occurred and be continuing; provided, notwithstanding clause (A) through (C) above, so long as the Administrative AgentMinimum Diversity Test is satisfied immediately after giving effect to such sale, the Borrower may at any time make solely during the Revolving Period, any Optional Sale of any Collateral Obligation if the sale price is equal to or greater than an amount equal to the Advance Rate multiplied by the greater of par and the related Purchase Price (expressed in Dollars) of such Collateral Obligation; provided, further, clause (D) shall not apply to any Optional Sale of assets during an Unmatured Event of Default so long as (ix) except as otherwise agreed the sale price of such assets is equal to the fair market value thereof, (y) the proceeds of such sale are sufficient to cure such Unmatured Event of Default and (z) no more than three (3) such sales occur in any calendar year.
(ii) No later than the trade date of any Optional Sale, the Servicer, on behalf of the Borrower, shall give the Facility Agent, the Collateral Custodian and the Collateral Agent written notice (which may be via email to the Facility Agent, the Collateral Custodian and the Collateral Agent) of such Optional Sale, which notice shall identify the related Collateral subject to such Optional Sale and the expected proceeds from such Optional Sale and include (x) a written representation from the Servicer that, immediately after giving effect to such Optional Sale, the Minimum Equity Test is satisfied and the Borrowing Base is greater than or equal to the Advances outstanding and (y) a written calculation of the Diversity Score immediately after giving effect to such Optional Sale;
(iii) such Optional Sale shall be made by the Administrative Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Servicer, the Facility Agent has given its prior written consent; provided that, the aggregate Principal Balance of all Collateral Obligations sold pursuant to Section 2.07(j)(i)(A)Optional Sales to the Equityholder from and after the Effective Date shall not exceed 20% of the highest Facility Amount in effect during the Revolving Period; and
(v) on the date of such Optional Sale, all proceeds from such Optional Sale will be deposited directly into the Collection Account.
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Borrower Collateral Agent shall have provided be deemed to release and transfer to the Administrative Borrower without recourse, representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(with a copy c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Facility Agent, the Collateral Agent, the Collateral Administrator Custodian, each Agent and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice Agent, on behalf of its intent to effect an Optional Sale on the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance portion of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of Collateral subject to such Optional Sale shall be deposited into to the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative AgentBorrower, in its sole and absolute discretion (upon recordable form if necessary, as the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), Borrower may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salereasonably request.
Appears in 2 contracts
Sources: Loan Financing and Servicing Agreement (Oaktree Specialty Lending Corp), Loan Financing and Servicing Agreement (Oaktree Strategic Income Corp)
Optional Sales. The Subject to the satisfaction of the conditions specified in Section 10.03, the Investment Advisor on behalf of the Borrower may on any Optional Sale Date, prepay all or portion of the Advances Outstanding in connection with arrange for the sale or disposition of any Collateral Loan through the Custodian if (i) (a) each Collateral Quality Test is satisfied after giving effect to such sale or disposition or (b) if, to the extent not satisfied, such sale or disposition maintains or improves such unsatisfied Collateral Quality Test; and (ii) no Default or Event of Default has occurred or is continuing or would result from such sale or disposition, and such sale or disposition will not cause a Default or Event of Default to occur, other transfer than in the case of a sale (x) that was entered into prior to such Default or Event of Default or (y) that would cure or lessen such Default or Event of Default; provided that, notwithstanding the foregoing, such sale or disposition must be approved by the Administrative Agent in its sole discretion if (i) the Coverage Tests are not satisfied, (ii) the Collateral Loan is sold for less than its Adjusted Principal Balance (except that sales for at least original purchase price (plus any related original issue discount) shall not require the Administrative Agent’s approval), (ii) either before or after giving effect to such sale or disposition, (x) more than 20% of the Collateral Loans sold by the Equityholder to the Borrower during the preceding 12-month period will have been sold, substituted or released to the Equityholder or (y) more than 10% of such sales, substitutions or releases to the Equityholder during such period would consist of Defaulted Collateral Loans; provided, further that (i) the Borrower shall have the right to sell all of the Collateral Loans in whole, but not in part, on any Business Day in a sale not meeting the foregoing conditions if 100% of the proceeds thereof are used to pay all of the Obligations under the Facility Documents in full and (ii) the Borrower shall have the right to sell all or a portion of the Loan Assets Collateral Loans on any Business Day in connection with a Permitted Securitization or a Permitted Refinancing securitization (each, an “Optional Sale”), without the consent of the Administrative Agent; so long as (i) except as otherwise agreed by the Administrative Agent pursuant to Section 2.07(j)(i)(A)or its Affiliates acts as arranger) or a refinancing of such Collateral Loans that, the Borrower shall have provided to the Administrative Agent (with in either case, results in a copy to the Collateral Agent, the Collateral Administrator and the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice of its intent to effect an Optional Sale on the Optional Sale Date, (ii) the purchase price repayment in cash deposited in the Collection Account with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance full of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with Obligations under the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of such Optional Sale shall be deposited into the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative Agent, in its sole and absolute discretion (upon the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional SaleFacility Documents.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Fidelity Private Credit Fund), Revolving Credit and Security Agreement (Fidelity Private Credit Fund)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied or improved;
(B) the Minimum Equity Condition is satisfied;
(C) (1) the Borrowing Base is greater than or equal to the Advances Outstanding and (2) the Foreign Currency Advance Amount shall not exceed the Foreign Currency Sublimit; and
(D) no Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default shall have occurred and be continuing; provided that, an Event of Default or Unmatured Event of Default may occur and be continuing if such Optional Sale (x) relates to the sale of a Specified Multiple Recurring Revenue Loan as otherwise agreed described in clause (ii) of the definition thereof or (y) cures any Specified Borrowing Base Breach;
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Servicer, on behalf of the Borrower, shall give the Facility Agent, the Collateral Custodian and the Collateral Agent written notice of such Optional Sale, which notice shall identify the related Collateral subject to such Optional Sale and the expected proceeds from such Optional Sale and include an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating that the Borrowing Base is greater than or equal to the Advances Outstanding;
(iii) such Optional Sale shall be made by the Administrative Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Servicer after the end of the Revolving Period, the Facility Agent has given its prior written consent;
(v) in no event shall the sum of the aggregate Principal Balance of Collateral Obligations sold pursuant to an Optional Sale (other than sales to any Existing ▇▇▇▇▇ BDC CLO pursuant to Section 2.07(j)(i)(A)9.36) exceed 25% of the highest aggregate Principal Balance of all Collateral Obligations at any time during the preceding 12 calendar months; provided that any Collateral Obligations transferred pursuant to an Optional Sale to the Servicer or an Affiliate of the Servicer with respect to a new issue collateralized loan obligation managed by the Servicer or an Affiliate of the Servicer and underwritten, arranged and/or structured by the Facility Agent or any Affiliate of the Facility Agent shall be excluded from the foregoing limit; provided further that, any Optional Sale of a Specified Multiple of Recurring Revenue Loan shall be excluded from the foregoing limit; and
(vi) on the date of such Optional Sale, all proceeds from such Optional Sale will be deposited directly into the Collection Account.
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Borrower Collateral Agent shall have provided be deemed to release and transfer to the Administrative Borrower without recourse, representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(with a copy c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Facility Agent, the Collateral Agent, the Collateral Administrator Custodian, each Agent and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice Agent, on behalf of its intent to effect an Optional Sale on the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance portion of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of Collateral subject to such Optional Sale shall be deposited into to the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative AgentBorrower, in its sole and absolute discretion (upon recordable form if necessary, as the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), Borrower may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salereasonably request.
Appears in 2 contracts
Sources: Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.), Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.)
Optional Sales. The Borrower In no event may on the Aggregate Principal Balance of all Collateral Obligations (including any Optional Sale DateDelinquent Obligations, prepay all or portion Restructured Obligations and Defaulted Obligations optionally sold) optionally sold by the Issuer for any reason exceed 20% (rounded to the nearest whole number) of the Advances Outstanding sum of (x) the highest value of the Adjusted Pool Balance measured since the Closing Date and (y) the sum of the principal balance of each Additional Collateral Obligation owned by the Issuer (determined as of the date such Additional Collateral Obligation is acquired by the Issuer). If a Collateral Obligation is optionally sold to an Affiliate (i) the amount received by the Issuer in connection with such sale must be equal to or greater than the Market Value and (ii) the proceeds of such sale or other transfer of all or a portion (together with any contributions from holders of the Loan Assets Subordinated Notes) must be in connection with an amount sufficient to not cause a Permitted Securitization or a Permitted Refinancing (each, an “Optional Sale”), without the consent breach of the Administrative Agent; so long Borrowing Base Condition (giving pro forma effect to such sale). In the event that the Issuer cannot consent to an amendment to a Collateral Obligation as a result of any applicable restrictions set forth hereof, such Collateral Obligation can be optionally sold to third parties (including Affiliates of the Issuer) without restriction (and shall not be included in the percentage limitation set forth in the first sentence of this Section 12.1(b)). Notwithstanding the foregoing, optional sales of Collateral Obligations to Affiliates of the Issuer pursuant to the immediately preceding sentence will only be permitted if (i) except as otherwise agreed by the Administrative Agent pursuant conditions described under Section 12.3(a) are met and (ii) the proceeds of such sale (together with any contributions from holders of the Subordinated Notes) are in an amount sufficient to Section 2.07(j)(i)(Asatisfy the Borrowing Base Condition (giving pro forma effect to such sale). The foregoing limitations shall not apply to sales to unaffiliated third parties of (i) Delinquent Obligations, the Borrower shall have provided to the Administrative Agent (with a copy to Restructured Obligations or Defaulted Obligations where the Collateral Agent, Manager has determined in good faith that the best recovery for such Collateral Administrator and Obligations is the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice of its intent to effect an Optional Sale on the Optional Sale Datesale thereof, (ii) the a Collateral Obligation which is subject to contractual purchase price in cash deposited in the Collection Account with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance rights of the Loan Assets being sold unaffiliated third parties and purchased in connection therewith, such unaffiliated third party has exercised such right and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of such Optional Sale shall be deposited into the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and a Collateral Obligation which is continuing, or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) being refinanced and the Agreement are satisfied in full, the Administrative Agent, in its sole and absolute discretion (upon the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to related Obligor or new lender has requested that such Collateral Obligation be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject sold to an Optional Saleunaffiliated third party for the purpose of refinancing such Collateral Obligation.
Appears in 2 contracts
Sources: Indenture (Monroe Capital Income Plus Corp), Indenture (Monroe Capital Income Plus Corp)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied or improved;
(B) the Minimum Equity Condition is satisfied;
(C) (1) the Borrowing Base is greater than or equal to the Advances Outstanding and (2) the Foreign Currency Advance Amount shall not exceed the Foreign Currency Sublimit; and
(D) no Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default shall have occurred and be continuing;
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Servicer, on behalf of the Borrower, shall give the Facility Agent, the Collateral Custodian and the Collateral Agent written notice of such Optional Sale, which notice shall identify the related Collateral subject to such Optional Sale and the expected proceeds from such Optional Sale and include an Officer’s Certificate computed as otherwise agreed of the date of such request and after giving effect to such Optional Sale, demonstrating that the Borrowing Base is greater than or equal to the Advances Outstanding;
(iii) such Optional Sale shall be made by the Administrative Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Servicer after the end of the Revolving Period, the Facility Agent has given its prior written consent;
(v) in no event shall the sum of the aggregate Principal Balance of Collateral Obligations sold pursuant to an Optional Sale (other than sales to any Existing G▇▇▇▇ BDC CLO pursuant to Section 2.07(j)(i)(A)9.36) exceed 25% of the highest aggregate Principal Balance of all Collateral Obligations at any time during the preceding 12 calendar months; provided that any Collateral Obligations transferred pursuant to an Optional Sale to the Servicer or an Affiliate of the Servicer with respect to a new issue collateralized loan obligation managed by the Servicer or an Affiliate of the Servicer and underwritten, arranged and/or structured by the Facility Agent or any Affiliate of the Facility Agent shall be excluded from the foregoing limit; and
(vi) on the date of such Optional Sale, all proceeds from such Optional Sale will be deposited directly into the Collection Account.
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Borrower Collateral Agent shall have provided be deemed to release and transfer to the Administrative Borrower without recourse, representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(with a copy c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Facility Agent, the Collateral Agent, the Collateral Administrator Custodian, each Agent and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice Agent, on behalf of its intent to effect an Optional Sale on the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance portion of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of Collateral subject to such Optional Sale shall be deposited into to the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative AgentBorrower, in its sole and absolute discretion (upon recordable form if necessary, as the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), Borrower may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salereasonably request.
Appears in 2 contracts
Sources: Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.), Loan Financing and Servicing Agreement (GOLUB CAPITAL INVESTMENT Corp)
Optional Sales. The (a) So long as no Event of Default or Unmatured Event of Default (other than as provided below) shall have occurred and be continuing, the Borrower may (or the Servicer on its behalf) shall have the right to sell any Optional Sale Date, prepay all or portion of the Advances Outstanding in connection with the sale or other transfer of all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligation (each, an “Optional Sale”)) subject to the provisions set forth in subsection (d) of this Section 7.10, without as applicable.
(b) The Borrower (or the consent Servicer on its behalf) shall have the right to sell all or any a portion of the Administrative Agent; so long as any (i) except as otherwise agreed by the Administrative Agent pursuant to Section 2.07(j)(i)(A), the Borrower shall have provided to the Administrative Agent (with a copy to the Defaulted Collateral Agent, the Collateral Administrator and the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice of its intent to effect an Optional Sale on the Optional Sale DateObligation, (ii) the purchase price in cash deposited in the Collection Account with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), Equity Security or (iii) 100% any Collateral Obligations included in the Excess Concentration Amount subject to subsections (d) of this Section 7.10, as applicable.
(c) So long as no Event of Default or Unmatured Event of Default (other than as provided below) shall have occurred and be continuing, the net proceeds Borrower (or the Servicer on its behalf) shall have the right to sell or otherwise transfer any Collateral Obligations to the Equityholder in connection with the Equityholder’s exercise of such Optional Sale shall be deposited into the Collection Account its right to be disbursed optionally repurchase or substitute a Collateral Obligation in accordance with Section 2.04 hereof6.2 of the Sale Agreement and shall have the right to acquire any such Substituted Collateral Obligation provided that, as certified to the Collateral Agent and the Facility Agent by a Responsible Officer of the Borrower or the Servicer, (A) any such Substituted Collateral Obligation meets the definition of an Eligible Collateral Obligation, (B) the aggregate outstanding principal balance of such Substituted Collateral Obligation(s) is greater than or equal to that of the replaced Collateral Obligation(s) and (ivC) no event has occurred and is continuing, such optional repurchase or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes substitution will not cause an Unmatured Event of Default or an Event of Default (unless, in the case of an Unmatured Event of Default, (1) such Unmatured Event of Default will be cured upon giving effect to such optional repurchase or substitution and the application of the proceeds thereof, (2) a Borrowing Base Deficiency; providedResponsible Officer of the Borrower or the Servicer certifies to the Facility Agent that it is in the process of curing such Unmatured Event of Default or (3) the Facility Agent consents to such optional repurchase or substitution).
(d) In connection with any sale or substitution, that so long as all other conditions in this clause applicable (each a “Transfer”), pursuant to subsection (a), (b) or (c) of this Section 7.10 and except as otherwise expressly set forth below:
(i) at least two (2) Business Days prior to the date of any such Transfer, the Servicer, on behalf of the Borrower, shall give the Facility Agent, the Collateral Custodian and the Agreement Collateral Agent written notice of such Transfer, which notice shall identify the related Collateral subject to such Transfer and the expected proceeds therefrom and include a certificate of the Servicer substantially in the form of Exhibit E-3 requesting the release of the related Collateral Obligation File in connection with such Transfer;
(ii) such Transfer shall be made by the Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) for any such sale, such sale is made (i) for Cash or as otherwise permitted in connection with an optional repurchase or substitution pursuant to Section 6.2 of the Sale Agreement, (ii) on an arm’s length basis, (iii) for fair market value and (iv) in accordance with Applicable Law, (C) for any such Transfer no adverse selection procedures shall have been used by the Borrower (or the Servicer on its behalf) in selecting the Collateral Obligations to be released in connection with such Transfer and those that will remain as part of the Collateral after giving effect to such Transfer, (D) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are satisfied customarily made or provided by special purpose entities in fullconnection with the sale of assets of such type), and (E) in a transaction in which the Administrative applicable purchaser agrees to a standard bankruptcy non-petition covenant with respect to the Borrower (in form and substance satisfactory to the Facility Agent, in its sole reasonable discretion) and absolute discretion agrees to release and waive any and all claims against the Borrower arising out of or in any way related to such Transfer;
(upon the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iviii) above in connection therewithwith any such sale pursuant to subsection (a), may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (iib) or (iiic) of this Section 2.07(c7.10 to an Affiliate of the Borrower or the Servicer, the Facility Agent has given its prior written consent unless, as certified by the Servicer to the Facility Agent, such sale is made on an arms-length basis on terms and conditions no less favorable to the Borrower than terms and conditions that the Borrower would reasonably be expected to obtain in a comparable sale with a non-Affiliate, and if such sale is made pursuant to subsection (a) of this Section 7.10, such sale is made at a price at least equal to the Purchase Price minus all collections attributable to principal on such Collateral Obligation received by or on behalf of the Borrower since the applicable purchase date;
(iv) (andA) on the date of any such sale, all proceeds from such sale will be deposited directly into the Collection Account and/or (B) on the date of any such substitution, the Document Checklist with respect to the substituted Eligible Collateral Obligation will be delivered to the Facility Agent and the Collateral Obligation Files identified thereon shall be delivered as required pursuant to Section 10.20 as if applicable, clause (i) the date of such substitution was the Funding Date with respect thereto for purposes of Section 2.07(h10.20; and
(v) belowin connection with any such sale pursuant to subsection (a) by an amount to any party that is not Affiliate of the Borrower or the Servicer, after giving effect to exceed such sale, the Minimum Credit Enhancement applicable aggregate Principal Balance of all Collateral Obligations sold as described in under subsection (a) (for the avoidance of doubt, excluding any sale that could be made pursuant to subsection (b) or (c)) to any party that is not Affiliate of the Borrower or the Servicer during the preceding period of 12 calendar months (or, for the first 12 calendar months after the Closing Date, during the period commencing on the Closing Date) is not greater than 25% of Total Capitalization as of the first day of such 12 calendar month period or, with respect to any period beginning on or prior to the Loan Assets Effective Date, as of the earlier of such date of determination and the Effective Date, as the case may be.
(e) Notwithstanding any other provision in this Agreement, the Borrower (or the Servicer on behalf of the Borrower) may sell (and may direct the Collateral Agent in writing to sell, assign, transfer and release) all or any portion of the Collateral in connection with the payment in full of all Obligations (other than contingent reimbursement and indemnification obligations which are unknown, unmatured and/or for which no claim has been made), termination of the Commitments and release of the Lien of the Collateral Agent for the benefit of the Secured Parties in the Collateral as provided in Section 12.3.
(f) In connection with any sale or substitution pursuant to this Section 7.10, the Collateral Agent shall release and transfer to the Borrower without recourse, representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to an Optional Salesuch sale or substitution and such portion of the Collateral so transferred shall be automatically released from the Lien of this Agreement as provided in Section 12.3.
(g) In connection with any sale pursuant to this Section 7.10, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the portion of the Collateral subject to such sale to the Borrower, in recordable form if necessary, as the Borrower may reasonably request.
Appears in 2 contracts
Sources: Loan Financing and Sale Agreement (AB Private Credit Investors Corp), Loan Financing and Servicing Agreement (AB Private Credit Investors Corp)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion (including, for the avoidance of doubt, pursuant to participation agreements or other agreements to effectuate assignments following an initial transfer of a participation interest or other portion of a Collateral Asset) of the Loan Collateral Assets in connection with a Permitted Securitization or a Permitted Refinancing (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except as Unless otherwise agreed consented to by the Administrative Agent pursuant (in its sole discretion), immediately after giving effect to such Optional Sale:
(A) no Borrowing Base Deficiency or Currency Asset Amount Shortfall exists or would occur as a result of such Optional Sale; provided that the Borrower may sell Collateral Assets as necessary to facilitate a cure of a Borrowing Base Deficiency (and any Default arising therefrom) in accordance with Section 2.07(j)(i)(A2.03(b);
(B) no Default, Event of Default, Unmatured Servicer Termination Event or Servicer Termination Event shall have occurred and be continuing; provided that the Borrower may sell Collateral Assets as necessary to facilitate a cure of a Borrowing Base Deficiency (and any Default arising therefrom) in accordance with Section 2.03(b);
(C) during the immediately preceding twelve (12) month period, the Borrower will not have sold Collateral Assets (other than Warranty Collateral Assets) in Optional Sales with an Aggregate Adjusted Principal Balance in excess of 20% of the Aggregate Adjusted Principal Balance as of the first day of such period; and
(D) the Borrower will not have distributed or sold Parent Collateral Assets to the Borrower Parent or any Controlled Affiliate thereof (other than Warranty Collateral Assets) in Optional Sales with an aggregate Principal Balance in excess of 20% (or 10% in the case of Defaulted Obligations) of the Net Purchased Loan Balance;
(ii) at least two (2) Business Days prior to the date of any Optional Sale, the Servicer, on behalf of the Borrower, shall have provided to give the Administrative Agent (with a copy to the Collateral Agent, the Collateral Administrator and the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior Custodian written notice of its intent to effect an such Optional Sale, which notice shall identify the related Collateral Assets subject to such Optional Sale on and the expected proceeds from such Optional Sale Date, and shall include (iix) a Borrowing Base Certificate and (y) a certificate of the purchase price in cash deposited Servicer substantially in the Collection Account with respect to form of Exhibit E-2 requesting the Optional Sale is at least equal to the aggregate Outstanding Loan Balance release of the Loan Assets being sold and purchased related Collateral Asset File in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), such Optional Sale;
(iii) 100% of the net proceeds of such Optional Sale shall be made by the Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) reflecting arm’s-length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is (x) to an Affiliate of the Borrower or the Servicer or (y) at a price less than the Adjusted Principal Balance of such Collateral Asset, the Administrative Agent has given its prior written consent; and
(v) on the date of such Optional Sale, all proceeds from such Optional Sale (x) will be deposited directly into the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (ivy) no event has occurred and is continuingwith respect to any sold Collateral Asset, or would result will be in the same Eligible Currency as such Collateral Asset.
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional SaleSale into the Collection Account, which constitutes an Event the Administrative Agent shall be deemed to release and transfer to the Borrower without recourse, representation or warranty all of Default the right, title and no event has occurred interest of the Administrative Agent for the benefit of the Secured Parties in, to and is continuing, or would result under such Collateral Asset(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from such the Lien of the Security Agreement.
(c) In connection with any Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative AgentAgent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the portion of the Collateral subject to such Optional Sale to the Borrower, in its sole and absolute discretion (upon recordable form if necessary, as the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), Borrower may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salereasonably request.
Appears in 1 contract
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except as otherwise agreed by immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied (or, if any Collateral Quality Test is not satisfied, it is improved);
(B) the Administrative Agent Minimum Equity Condition is satisfied;
(C) the Borrowing Base is greater than or equal to the Advances outstanding; and
(D) no Facility Termination Event, Unmatured Facility Termination Event, Unmatured Investment Manager Event of Default or Investment Manager Event of Default shall have occurred and be continuing; provided that, once in any twelve-month period, if an Unmatured Facility Termination Event or Unmatured Investment Manager Event of Default is continuing, the Borrower may make an Optional Sale if, after giving effect to such Optional Sale, such event is cured (although, for the avoidance of doubt, such event shall be continuing for all purposes hereunder until the settlement date of such Optional Sale); provided, notwithstanding the above, that the Borrower may make (i) any Optional Sale of any Collateral Obligation that, in the Collateral Manager’s reasonable judgment, has a significant risk of declining in credit quality and, with the lapse of time, becoming a Defaulted Collateral Obligation, if after giving effect to such Optional Sale, (a) no Facility Termination Event is continuing and (b) the aggregate Principal Balance of all such Collateral Obligations sold pursuant to Section 2.07(j)(i)(A)this proviso in any twelve-month period does not exceed 15% of the Aggregate Eligible Collateral Obligation Amount in effect on the date of such sale, (ii) any Optional Sale of any Collateral Obligation if (x) the sale price is equal to or greater than the Principal Balance of such Collateral Obligation and (y) the proceeds from such Optional Sale are applied to reduce the Advances or (iii) any Optional Sale required as a result of the Required Sale Date.
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Borrower shall have provided cause the Investment Manager to give the Administrative Agent (with a copy to the Collateral Agent, each Agent, the Collateral Administrator Custodian and the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior Agent written notice of its intent such Optional Sale, which notice shall identify the related Collateral subject to effect an such optional sale and the expected proceeds from such Optional Sale on the Optional Sale Date, and include (iix) the purchase price in cash deposited in the Collection Account with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance an Officer’s Certificate computed as of the Loan Assets being sold date of such request and purchased in connection therewithafter giving effect to such Optional Sale, and otherwise complies demonstrating compliance with the pricing requirements set forth in clause clauses (h) belowA), (B) and (C) above and all other conditions set forth herein are satisfied and (y) a certificate of the Investment Manager substantially in the form of Exhibit F-3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iii) 100% of the net proceeds of such Optional Sale shall be deposited into made by the Collection Account to be disbursed Investment Manager, on behalf of the Borrower (A) in accordance with Section 2.04 hereofthe Investment Management Standard, and (iv) no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative Agent, in its sole and absolute discretion (upon the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewithB), may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Sale.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS Investment Corp III)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion (including, for the avoidance of doubt, pursuant to participation agreements or other agreements to effectuate assignments following an initial transfer of a participation interest or other portion of a Collateral Asset) of the Loan Collateral Assets in connection with a Permitted Securitization or a Permitted Refinancing (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except as Unless otherwise agreed consented to by the Administrative Agent (in its sole discretion), immediately after giving effect to such Optional Sale:
(A) no Borrowing Base Deficiency exists or would occur as a result of such Optional Sale (other than in connection with the cure of a Borrowing Base Deficiency pursuant to Section 2.07(j)(i)(A2.03(b));
(B) no Default, Event of Default, Unmatured Collateral Manager Termination Event or Collateral Manager Termination Event shall have occurred and be continuing (other than in connection with the cure of a Borrowing Base Deficiency pursuant to Section 2.03(b));
(C) [reserved]; and
(D) notwithstanding anything to the contrary, the Borrower shall will not have provided distributed or sold Borrower Parent Collateral Assets to the Administrative Agent Borrower Parent or any Controlled Affiliate (other than Warranty Collateral Assets) in Optional Sales with a copy to an aggregate Outstanding Amount, collectively, in excess of 20% of the Collateral Agent, Borrower Parent Purchased Loan Balance measured as of the Collateral Administrator and the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice date of its intent to effect an Optional Sale on the Optional Sale Date, such sale or distribution;
(ii) the purchase price in cash deposited any Optional Sale shall be reported in the Collection Account with respect applicable Daily Report, which notice shall identify the related Collateral Assets subject to the such Optional Sale is at least equal to and the aggregate Outstanding Loan Balance of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), expected proceeds from such Optional Sale;
(iii) 100% of the net proceeds of such Optional Sale shall be made by the Collateral Manager, on behalf of the Borrower (A) in accordance with the Collateral Manager Standard, (B) reflecting arm’s-length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is at a price less than the Adjusted Principal Balance of such Collateral Asset, the Administrative Agent has given its prior written consent; and
(v) on the date of such Optional Sale, all proceeds from such Optional Sale (x) will be deposited directly into the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (ivy) with respect to any sold Collateral Asset, will be in the same Eligible Currency as such Collateral Asset.
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Administrative Agent shall be deemed to release and transfer to the Borrower without recourse, representation or warranty all of the right, title and interest of the Administrative Agent for the benefit of the Secured Parties in, to and under such Collateral Asset(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of the Security Agreement.
(c) In connection with any Optional Sale, the Administrative Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the portion of the Collateral subject to such Optional Sale to the Borrower, in recordable form if necessary, as the Borrower may reasonably request.
(d) Subject to Section 2.15(a)(i)(D), the Borrower may effect an Optional Sale of any Collateral Assets with an Assigned Value Percentage of zero or any Equity Securities: (i) if no event Default, Event of Default, Unmatured Collateral Manager Termination Event or Collateral Manager Termination Event shall have occurred and be continuing, then so long as the Borrower provides notice of such Optional Sale to the Administrative Agent; (ii) if a Default, Event of Default, Unmatured Collateral Manager Termination Event or Collateral Manager Termination Event has occurred and is continuing, then so long as such Optional Sale is effected as part or would result all of a Borrowing Base Deficiency or Currency Asset Amount Shortfall cure in accordance with Section 2.03(b); (iii) if such Optional Sale shall be made by the Collateral Manager, on behalf of the Borrower (A) in accordance with the Collateral Manager Standard, (B) reflecting arm's-length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type); and (iv) if all proceeds from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause Sale (cx) and the Agreement are satisfied in full, the Administrative Agent, in its sole and absolute discretion (upon the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to will be deposited in directly into the Collection Account under clause and (iiy) or (iii) of this Section 2.07(c) (andwith respect to any sold Collateral Asset, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed will be in the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salesame Eligible Currency as such Collateral Asset.
Appears in 1 contract
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except as otherwise agreed by immediately after giving effect to such Optional Sale (together with such other Optional Sales and other actions to be effected in connection with any cure of a Borrowing Base Deficiency in accordance with Section 2.10):
(A) the Administrative Borrowing Base is greater than or equal to the Loans outstanding (or, if the foregoing condition is not satisfied, the Borrowing Base is maintained or improved and the Agent has given its prior written consent) and the Foreign Currency Loan Amount will not exceed the Foreign Currency Sublimit (or, any existing excess of the Foreign Currency Sublimit is maintained or improved); and
(B) no Event of Default, Unmatured Event of Default, Unmatured Servicer Event of Default or Servicer Event of Default shall have occurred and be continuing (other than any Unmatured Event of Default that would be cured or improved after giving effect to such Optional Sale); provided that, notwithstanding the above, the Borrower may make (i) any Optional Sale of any Collateral Obligation that, in the Servicer’s reasonable judgment, has a significant risk of declining in credit quality and, with the lapse of time, becoming a Defaulted Collateral Obligation, if after giving effect to such Optional Sale, (a) no Event of Default is continuing and (b) the aggregate Principal Balance of all such Collateral Obligations (other than Broadly Syndicated Loans) sold pursuant to Section 2.07(j)(i)(Athis proviso in any twelve-month period does not exceed 20% of the Aggregate Eligible Collateral Obligation Amount plus Principal Collections on deposit in the Principal Collection Account in effect on the date of such sale; (ii) any Optional Sale of any Collateral Obligation if (x) the sale price is equal to or greater than the acquisition price of such Collateral Obligation and (y) the proceeds from such Optional Sale are applied to reduce the Loans; (iii) any Optional Sale made to reduce the Loans outstanding to be less than the Borrowing Base (so long as, immediately following such Optional Sale and any repayment of the Loans, the Loans outstanding do not exceed either the Borrowing Base or the Facility Amount); (iv) any Optional Sale of a Collateral Obligation that has a Collateral Obligation Amount of zero; (v) any Optional Sale of any portion of a Collateral Obligation constituting an Excess Concentration Amount; or (vi) any Optional Sale for which the Agent has provided consent;
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Borrower shall have provided cause the Servicer to give the Administrative Agent (with a copy to the Collateral Agent, each Lender Agent, the Collateral Administrator and the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior Agent written notice of its intent such Optional Sale, which notice shall identify the related Collateral subject to effect an such optional sale and the expected proceeds from such Optional Sale on and include a certificate of the Optional Sale Date, (ii) the purchase price in cash deposited Servicer substantially in the Collection Account with respect to form of Exhibit F-3 requesting the Optional Sale is at least equal to the aggregate Outstanding Loan Balance release of the Loan Assets being sold and purchased related Collateral Obligation File in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), such Optional Sale;
(iii) 100% of the net proceeds of such Optional Sale shall be deposited into made by the Collection Account to be disbursed Servicer, on behalf of the Borrower (A) in accordance with Section 2.04 hereofthe Servicer Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Servicer, it shall be, in each case except as otherwise expressly permitted under the Transaction Documents, (i) for fair market value, (ii) on terms no event has occurred less favorable to the Borrower than would be the case if such Person were not an Affiliate or as otherwise expressly permitted in this Agreement and is continuing, or would result from (iii) effected in accordance with all Applicable Laws; and
(v) on the date of such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result all proceeds from such Optional Sale will be sent directly into the Collection Account.
(b) In connection with any Optional Sale, which constitutes an Unmatured Event following deposit of Default all proceeds from such Optional Sale into the applicable Principal Collection Account, the Collateral Agent shall be deemed to release and transfer to the Borrower (or a Borrowing Base Deficiency; providedthe purchaser thereof from the Borrower) without recourse, that representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so long as all other conditions in transferred shall be released from the Lien of this clause Agreement.
(c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Agreement are satisfied in fullAgent, the Administrative Collateral Agent, the Collateral Administrator, each Lender Agent and each Lender in its sole and absolute discretion connection with any Optional Sale (upon including, but not limited to, expenses incurred in connection with the delivery release of a Notice the Lien of Permitted Securitization the Collateral Agent, on behalf of the Secured Parties, in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above Collateral in connection therewithwith such Optional Sale).
(d) In connection with any Optional Sale, may permit the offset (a “Permitted Offset”) Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release prepared by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable with respect to the Loan Assets portion of the Collateral subject to an such Optional SaleSale to the Borrower or in recordable form if necessary, as the Borrower or the Servicer on its behalf, may reasonably request.
Appears in 1 contract
Sources: Loan and Servicing Agreement (AGL Private Credit Income Fund)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), subject to the following terms and conditions:
(i) immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied (or, if any Collateral Quality Test is not satisfied, it is improved);
(B) The Minimum Equity Test is satisfied;
(C) the Borrowing Base is greater than or equal to the Advances outstanding; and
(D) no Event of Default or Unmatured Event of Default shall have occurred and be continuing; provided, that notwithstanding the above, the Borrower may at any time make (x) any Optional Sale of any Collateral Obligation that, in the Servicer’s reasonable judgment, has a significant risk of declining in credit quality and, with the lapse of time, becoming a Defaulted Collateral Obligation, if after giving effect to such Optional Sale, no Event of Default is continuing, (y) any Optional Sale of any Collateral Obligation if (I) the sale price is equal to or greater than the Principal Balance of such Collateral Obligation and (II) the proceeds from such Optional Sale are applied to reduce the Advances and (z) any Optional Sale required as a result of the Required Sale Date.
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Servicer, on behalf of the Borrower, shall give the Administrative Agent, the Collateral Custodian, the Collateral Agent and each Lender (via the Collateral Agent’s Website) written notice of such Optional Sale, which notice shall identify the related Collateral subject to such Optional Sale and the expected proceeds from such Optional Sale and include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating compliance with clauses (a)(i)(A), (B) and (C) above and all other conditions set forth in this Section 7.10 are satisfied and (y) a certificate of the Servicer substantially in the form of Exhibit F‑3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iii) such Optional Sale shall be made by the Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Servicer, the Administrative Agent has given its prior written consent (which consent, if such Optional Sale is at par, shall not be unreasonably withheld, conditioned or delayed); and (v) on the settlement date of such Optional Sale, all proceeds from such Optional Sale will be deposited directly into the Collection Account .
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Borrower without recourse, representation or warranty all of the consent right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Administrative Agent; so long as (i) except as otherwise agreed by the Administrative Agent pursuant to Section 2.07(j)(i)(A), the Borrower shall have provided to the Administrative Agent (with a copy to the Collateral Agent, the Collateral Administrator Custodian and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice Agent, on behalf of its intent to effect an Optional Sale on the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance portion of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of Collateral subject to such Optional Sale shall be deposited into to the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative AgentBorrower, in its sole and absolute discretion (upon recordable form if necessary, as the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), Borrower may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salereasonably request.
Appears in 1 contract
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), subject to the following terms and conditions:
(i) immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied (or, if any Collateral Quality Test is not satisfied, it is improved);
(B) The Minimum Equity Test is satisfied;
(C) the Borrowing Base is greater than or equal to the Advances outstanding; and (D) no Event of Default or Unmatured Event of Default shall have occurred and be continuing; provided, that notwithstanding the above, the Borrower may at any time make (x) any Optional Sale of any Collateral Obligation that, in the Servicer’s reasonable judgment, has a significant risk of declining in credit quality and, with the lapse of time, becoming a Defaulted Collateral Obligation, if after giving effect to such Optional Sale, no Event of Default is continuing, (y) any Optional Sale of any Collateral Obligation if (I) the sale price is equal to or greater than the Principal Balance of such Collateral Obligation and (II) the proceeds from such Optional Sale are applied to reduce the Advances and (z) any Optional Sale required as a result of the Required Sale Date.
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Servicer, on behalf of the Borrower, shall give the Administrative Agent, the Collateral Custodian, the Collateral Agent and each Lender (via the Collateral Agent’s Website) written notice of such Optional Sale, which notice shall identify the related Collateral subject to such Optional Sale and the expected proceeds from such Optional Sale and include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating compliance with clauses (a)(i)(A), (B) and (C) above and all other conditions set forth in this Section 7.10 are satisfied and (y) a certificate of the Servicer substantially in the form of Exhibit F‑3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iii) such Optional Sale shall be made by the Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Servicer, the Administrative Agent has given its prior written consent (which consent, if such Optional Sale is at par, shall not be unreasonably withheld, conditioned or delayed); and
(v) on the settlement date of such Optional Sale, all proceeds from such Optional Sale will be deposited directly into the Collection Account .
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Borrower without recourse, representation or warranty all of the consent right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Administrative Agent; so long as (i) except as otherwise agreed by the Administrative Agent pursuant to Section 2.07(j)(i)(A), the Borrower shall have provided to the Administrative Agent (with a copy to the Collateral Agent, the Collateral Administrator Custodian and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice Agent, on behalf of its intent to effect an Optional Sale on the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance portion of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of Collateral subject to such Optional Sale shall be deposited into to the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative AgentBorrower, in its sole and absolute discretion (upon recordable form if necessary, as the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), Borrower may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salereasonably request.
Appears in 1 contract
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent following terms and conditions:
(i) immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied (or, (1) if (x) any Collateral Quality Test (other than the Minimum Diversity Test) is not satisfied it is maintained or improved and (y) the Minimum Diversity Test is satisfied, or (2) the Facility Agent shall have consented to such sale, in its sole discretion);
(B) the Minimum Equity Test is satisfied;
(C) the Borrowing Base is greater than or equal to the Advances outstanding; and
(D) no Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default shall have occurred and be continuing; provided, notwithstanding clause (A) through (C) above, so long as the Administrative AgentMinimum Diversity Test is satisfied immediately after giving effect to such sale, the Borrower may at any time make, solely during the Revolving Period, any Optional Sale of any Collateral Obligation if the sale price is equal to or greater than an amount equal to the Advance Rate multiplied by the greater of par and the related Purchase Price (expressed in Dollars) of such Collateral Obligation; provided, further, clause (D) shall not apply to any Optional Sale of assets during an Unmatured Event of Default so long as (ix) except as otherwise agreed by the Administrative Agent pursuant sale price of such assets is equal to Section 2.07(j)(i)(A)the fair market value thereof, (y) the proceeds of such sale are sufficient to cure such Unmatured Event of Default and (z) no more than three (3) such sales occur in any calendar year.
(ii) No later than the trade date of any Optional Sale, the Borrower Servicer, on behalf of the Borrower, shall have provided to give the Administrative Agent (with a copy to the Collateral Facility Agent, the Collateral Administrator Custodian and the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior Agent written notice (which may be via email to the Facility Agent, the Collateral Custodian and the Collateral Agent) of its intent such Optional Sale, which notice shall identify the related Collateral subject to effect an such Optional Sale on and the expected proceeds from such Optional Sale Dateand include (x) a written representation from the Servicer that, (ii) immediately after giving effect to such Optional USActive 49316845.1149316845.12 Sale, the purchase price in cash deposited in Minimum Equity Test is satisfied and the Collection Account with respect to the Optional Sale Borrowing Base is at least greater than or equal to the aggregate Outstanding Loan Balance Advances outstanding and (y) a written calculation of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), Diversity Score immediately after giving effect to such Optional Sale;
(iii) 100% of the net proceeds of such Optional Sale shall be deposited into made by the Collection Account to be disbursed Servicer, on behalf of the Borrower (A) in accordance with Section 2.04 hereofthe Servicing Standard, (B) reflecting arm’s length market terms and (ivC) in a transaction in which the Borrower makes no event has occurred and is continuingrepresentations, warranties or would result from such Optional Sale- 84- USActive 49316845.1149316845.12 flow-of-funds memo agreed to between the Facility Agent, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) the Equityholder and the Agreement are satisfied in full, Servicer (a copy of which will be provided to the Administrative Collateral Agent) and, in its sole the event of any conflict between such flow-of-funds memo and absolute discretion (upon the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) any provision of this Section 2.07(c) (andAgreement, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salesuch flow-of-funds memo will control.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Oaktree Strategic Income Corp)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except as otherwise agreed immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied (or, with respect to any Collateral Quality Test that was not satisfied immediately prior to such Optional Sale, the extent of compliance with such Collateral Quality Test will be improved);`
(B) the Minimum Diversification Condition is satisfied;
(C) (1) the Borrowing Base is greater than or equal to the Advances Outstanding and (2) the Foreign Currency Advance Amount shall not exceed the Foreign Currency Sublimit;
(D) no Event of Default or Unmatured Event of Default shall have occurred and be continuing; and
(E) the quotient of (1) the Aggregate Eligible Collateral Obligation Amount of all Collateral Obligations sold by the Administrative Agent pursuant to Section 2.07(j)(i)(A)Borrower during the then-current calendar year divided by (2) the Highest Eligible Collateral Obligation Amount for such calendar year does not exceed (a) if such Optional Sale occurs in 2020, the Borrower shall have provided sum of (x) 40% and (y) if any, the lesser of (i) 20% and (ii) the quotient of (I) the Aggregate Eligible Collateral Obligation Amount of all Collateral Obligations sold under a one-time Optional Sale of the Collateral Obligations to another Subsidiary of the Equityholder that is or will become party to the Administrative Agent Incremental Facility divided by (II) the Highest Eligible Collateral Obligation Amount for such calendar year or (b) otherwise, 40%; provided that (A) on the Twelfth Amendment Effective Date, this clause (E) shall be deemed to be reset to zero and be calculated from the Twelfth Amendment Effective Date until December 31, 2020 and (B) on January 1, 2021, this clause (E) shall be deemed to be reset to zero and be calculated for each succeeding calendar year; provided, further, that notwithstanding anything in the foregoing, this sub-clause (E) shall not apply to an Optional Sale made under and in accordance with a copy Section 7.10(a)(v);
(ii) at least one (1) Business Day prior to the Collateral date of any Optional Sale, the Servicer, on behalf of the Borrower, shall give the Facility Agent, the Collateral Administrator Custodian and the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior Agent written notice of its intent such Optional Sale, which notice shall identify the related Collateral subject to effect an such Optional Sale on and the expected proceeds from such Optional Sale Dateand include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating that the Borrowing Base is greater than or equal to the Advances Outstanding and (y) a certificate of the Servicer substantially in the form of Exhibit F-3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iii) such Optional Sale shall be made by the Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (iiB) reflecting arm’s length market terms and (C) in a transaction in which the purchase price Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in cash deposited in connection with the Collection Account with respect to sale of assets of such type);
(iv) (1) if, after the end of the Revolving Period, such Optional Sale is of an asset deemed ineligible under clause (y) of the definition of Eligible Collateral Obligation, the Facility Agent has given its prior written consent or (2) if such Optional Sale is to an Affiliate of the Borrower, the Equityholder or the Servicer, either (A) the Facility Agent has given its prior written consent or (B) such Optional Sale is completed at a price at least equal to (x) if (I) the aggregate Outstanding Loan Balance Revolving Period has not ended, (II) no Event of Default or Unmatured Event of Default shall have occurred and be continuing and (III) each Collateral Quality Test (or, with respect to any Collateral Quality Test that was not satisfied immediately prior to such Optional Sale, the extent of compliance with such Collateral Quality Test will be improved) and the Minimum Equity Test is satisfied, the lower of (X) par and (Y) the applicable Discount Factor multiplied by par (and if the applicable Discount Factor is zero, then the minimum Optional Sale price shall be zero) or (y) otherwise at least the Purchase Price of such Collateral Obligation as of the Loan Assets being sold and purchased date thereof by the Borrower; provided that, notwithstanding anything in connection therewiththe foregoing clause (iv), and otherwise complies with if the pricing requirements CLO Takeout occurs during the Revolving Period, the sale price of each Collateral Obligation that is subject to an Optional Sale pursuant to Section 7.10(a)(v) shall be as set forth in clause (hC) below)thereof;
(v) if such Optional Sale is made in connection with the CLO Takeout:
(A) such sale may be in the form of a grant by the Borrower to the CLO Issuer of participation interest in one or more Collateral Obligations, provided that such participation interest shall be elevated to an assignment of record by no later than forty-five (iii45) 100% of calendar days after such grant;
(B) the net proceeds effective date of such Optional Sale shall occur no later than the CLO Takeout; and
(C) the sale price of each Collateral Obligation that is subject to such Optional Sale shall be determined based upon prices reported on one or more recognized, independent pricing services or, in the absence of such prices, based upon prices determined by an independent valuation firm; and
(vi) on the date of such Optional Sale, all proceeds from such Optional Sale (x) will be deposited directly into the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (ivy) no event has occurred and is continuingwith respect to any sold Collateral Obligation, or would result will be in the same Eligible Currency as such Collateral Obligation.
(b) In connection with any Optional Sale, concurrently with the deposit of all proceeds from such Optional SaleSale into the Collection Account, which constitutes an Event the Collateral Agent shall be deemed to release and transfer to the Borrower without recourse, representation or warranty all of Default the right, title and no event has occurred interest of the Collateral Agent for the benefit of the Secured Parties in, to and is continuing, or would result under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from such the Lien of this Agreement.
(c) In connection with any Optional Sale, which constitutes an Unmatured Event the Collateral Agent shall, at the sole expense of Default or a Borrowing Base Deficiency; providedthe Borrower, that so long as all other conditions in this clause (c) and execute such instruments of release with respect to the Agreement are satisfied in full, portion of the Administrative AgentCollateral subject to such Optional Sale to the Borrower, in its sole and absolute discretion (upon recordable form if necessary, as the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), Borrower may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salereasonably request.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Silver Point Specialty Lending Fund)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion (including, for the avoidance of doubt, pursuant to participation agreements or other agreements to effectuate assignments following an initial transfer of a participation interest or other portion of a Collateral Asset) of the Loan Collateral Assets in connection with a Permitted Securitization or a Permitted Refinancing (each, an “Optional Sale”), without subject to the consent following terms and conditions (provided that none of the Administrative Agent; so long as following terms and conditions set forth in this Section 2.15 shall be applicable to the release of Collateral Assets in connection with a CLO Takeout pursuant to Section 2.18):
(i) except as Unless otherwise agreed consented to by the Administrative Agent pursuant (in its sole discretion), immediately after giving effect to such Optional Sale:
(A) no Borrowing Base Deficiency exists or would occur as a result of such Optional Sale (unless, in each case, such Optional Sale is effected as part or all of a Borrowing Base Deficiency cure in accordance with Section 2.07(j)(i)(A2.03(b)(i)(B));
(B) no Default, Event of Default, Unmatured Servicer Termination Event or Servicer Termination Event shall have occurred and be continuing, unless, in each case (i) such Optional Sale is effected as part or all of a Borrowing Base Deficiency cure in accordance with Section 2.03(b)(i)(B) or Currency Asset Amount Shortfall cure in accordance with Section 2.03(b)(ii) or (ii) such Optional Sale was committed to be entered into prior to such Default, Event of Default, Unmatured Servicer Termination Event or Servicer Termination Event;
(C) during the immediately preceding twelve (12) month period, the Borrower will not have sold Collateral Assets (other than Warranty Collateral Assets or Collateral Assets sold in connection with a CLO Takeout or sales effected in connection with curing a Borrowing Base Deficiency or a Currency Asset Amount Shortfall in accordance with Section 2.03(b)) in Optional Sales with an Aggregate Adjusted Principal Balance in excess of 20% of the Aggregate Adjusted Principal Balance as of the first day of such period; and
(D) notwithstanding anything to the contrary, the Borrower will not have distributed or sold Borrower Parent Collateral Assets to the Borrower Parent or any Controlled Affiliate (other than Warranty Collateral Assets) in Optional Sales with an aggregate Outstanding Amount, collectively, in excess of 20% of the Borrower Parent Purchased Loan Balance measured as of the date of such sale or distribution;
(ii) at least two (2) Business Days prior to the date of any Optional Sale (other than any Optional Sale that is effected as part or all of a Borrowing Base Deficiency cure in accordance with Section 2.03(b)(i)(B) or Currency Asset Amount Shortfall cure in accordance with Section 2.03(b)(ii)), the Borrower Servicer, on behalf of the Borrower, shall have provided to give the Administrative Agent (with a copy to the Collateral Agent, the Collateral Administrator and the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior Custodian written notice of its intent to effect an such Optional Sale, which notice shall identify the related Collateral Assets subject to such Optional Sale on and the expected proceeds from such Optional Sale Date, and shall include (iix) a Borrowing Base Certificate and (y) a certificate of the purchase price in cash deposited Servicer substantially in the Collection Account with respect to form of Exhibit E-2 requesting the Optional Sale is at least equal to the aggregate Outstanding Loan Balance release of the Loan Assets being sold and purchased related Collateral Asset File in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), such Optional Sale;
(iii) 100% of the net proceeds of such Optional Sale shall be made by the Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) reflecting arm’s-length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale occurs after the end of the Availability Period and is at a price less than the Adjusted Principal Balance of such Collateral Asset, the Administrative Agent has given its prior written consent; and
(v) on the date of such Optional Sale, all proceeds from such Optional Sale (x) will be deposited directly into the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (ivy) with respect to any sold Collateral Asset, will be in the same Eligible Currency as such Collateral Asset.
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Administrative Agent shall be deemed to release and transfer to the Borrower without recourse, representation or warranty all of the right, title and interest of the Administrative Agent for the benefit of the Secured Parties in, to and under such Collateral Asset(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of the Security Agreement.
(c) In connection with any Optional Sale, the Administrative Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the portion of the Collateral subject to such Optional Sale to the Borrower, in recordable form if necessary, as the Borrower may reasonably request.
(d) Subject to Section 2.15(a)(i)(D), the Borrower may effect an Optional Sale of any Collateral Assets with an Assigned Value of zero or any Equity Securities: (i) if no event Default, Event of Default, Unmatured Servicer Termination Event or Servicer Termination Event shall have occurred and be continuing, then so long as the Borrower provides notice of such Optional Sale to the Administrative Agent or (ii) if a Default, Event of Default, Unmatured Servicer Termination Event or Servicer Termination Event has occurred and is continuing, or would result from then so long as such Optional Sale, which constitutes an Event Sale is effected as part or all of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions Deficiency cure in this clause (c) and the Agreement are satisfied in full, the Administrative Agent, in its sole and absolute discretion (upon the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance accordance with clause (iv) above in connection therewith), may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (iiSection 2.03(b)(i)(B) or (iii) of this Currency Asset Amount Shortfall cure in accordance with Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Sale2.03(b)(ii).
Appears in 1 contract
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), subject to the following terms and conditions:
(i) immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied or, if not satisfied immediately prior to such Optional Sale, the extent of compliance will be improved;
(B) the Minimum Equity Test is satisfied;
(C) the Borrowing Base is greater than or equal to the Advances outstanding;
(D) no Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default shall have occurred and be continuing; provided that, if an Unmatured Event of Default or Unmatured Servicer Default is continuing, the Borrower may make an Optional Sale if, after giving effect to such Optional Sale, such event is cured (although, for the avoidance of doubt, such event shall be continuing for all purposes hereunder until the settlement date of such Optional Sale) and, after the end of the Revolving Period, such Optional Sale is for a purchase price equal to the greater of (x) the Purchase Price of such Collateral Obligation as of the Cut-Off Date and (y) 95.0% of par; and USActive 58353885.2
(E) during the immediately preceding twelve (12) month period, without the prior written consent of the Administrative Facility Agent in its sole discretion, the Borrower will not have sold Collateral Obligations in Optional Sales with an aggregate Collateral Obligation Amount in excess of 35% of the highest Aggregate Eligible Collateral Obligation Amount as of any day during such period; provided, that the Borrower may, during the Revolving Period, make any Optional Sale of any Collateral Obligation that, in the Servicer’s reasonable judgment, has a significant risk of declining in credit quality and, with the lapse of time, becoming a Defaulted Collateral Obligation, if after giving effect to such Optional Sale both (x) no Unmatured Event of Default or Event of Default is continuing and (y) the aggregate Collateral Obligation Amount of Collateral Obligations sold pursuant to this proviso does not exceed, during the immediately preceding twelve (12) month period, 10% of the highest Aggregate Eligible Collateral Obligation Amount as of any day during such period;
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Servicer, on behalf of the Borrower, shall give the Facility Agent, the Collateral Custodian and the Collateral Agent written notice of such Optional Sale, which notice shall identify the related Collateral subject to such Optional Sale and the expected proceeds from such Optional Sale and include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating that the Borrowing Base is greater than or equal to the aggregate principal amount of all Advances outstanding and (y) a certificate of the Servicer substantially in the form of Exhibit F‑3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iii) such Optional Sale shall be made by the Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Servicer, the Facility Agent has given its prior written consent; so long as provided that such consent shall not be required (A) if such sale is for a purchase price at least equal to the greatest of (i) except the Purchase Price, (ii) the Collateral Obligation Amount and (iii) the fair market value (as otherwise agreed determined based upon prices reported on one or more recognized, independent pricing services selected by the Administrative Agent pursuant Servicer) or (B) during the Revolving Period, if (x) any Collateral Obligation does not meet the definition of “Eligible Collateral Obligation” and has a Collateral Obligation Amount of zero and (y) such Optional Sale is to Section 2.07(j)(i)(A)the Equityholder, then such sale may be treated as a return of capital to the Equityholder without payment of a purchase price in cash from the Equityholder to the Borrower; and
(v) on the date of such Optional Sale, all proceeds from such Optional Sale will be deposited directly into the Collection Account.
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Borrower Collateral Agent shall have provided be deemed to USActive 58353885.2 release and transfer to the Administrative Borrower without recourse, representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(with a copy c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Facility Agent, the Collateral Agent, the Collateral Administrator Custodian, each Agent and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice Agent, on behalf of its intent to effect an Optional Sale on the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance portion of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of Collateral subject to such Optional Sale shall be deposited into to the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative AgentBorrower, in its sole and absolute discretion (upon recordable form if necessary, as the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), Borrower may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salereasonably request.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (MSD Investment Corp.)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), subject to the following terms and conditions:
(i) immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied (or, if any Collateral Quality Test is not satisfied, it is improved);
(B) The Minimum Equity Test is satisfied;
(C) the Borrowing Base is greater than or equal to the Advances outstanding; and
(D) no Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default shall have occurred and be continuing; provided, that notwithstanding the above, the Borrower may at any time make (x) any Optional Sale of any Collateral Obligation that, in the Servicer’s reasonable judgment, has a significant risk of declining in credit quality and, with the lapse of time, becoming a Defaulted Collateral Obligation, if after giving effect to such Optional Sale, no Event of Default is continuing, (y) any Optional Sale of any Collateral Obligation if (I) the sale price is equal to or greater than the Principal Balance of such Collateral Obligation and (II) the proceeds from such Optional Sale are applied to reduce the Advances and (z) any Optional Sale required as a result of the Required Sale Date.
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Servicer, on behalf of the Borrower, shall give the Administrative Agent, the Collateral Custodian and the Collateral Agent written notice of such Optional Sale, which notice shall identify the related Collateral subject to such Optional Sale and the expected proceeds from such Optional Sale and include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating compliance with clauses (a)(i)(A), (B) and (C) above and all other conditions set forth in this Section 7.10 are satisfied and (y) a certificate of the Servicer substantially in the form of Exhibit F‑3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iii) such Optional Sale shall be made by the Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Servicer, the Administrative Agent has given its prior written consent (which consent, if such Optional Sale is at par, shall not be unreasonably withheld, conditioned or delayed); and
(v) on the date of such Optional Sale, all proceeds from such Optional Sale will be deposited directly into the Collection Account .
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Borrower without recourse, representation or warranty all of the consent right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Administrative Agent; so long as (i) except as otherwise agreed by the Administrative Agent pursuant to Section 2.07(j)(i)(A), the Borrower shall have provided to the Administrative Agent (with a copy to the Collateral Agent, the Collateral Administrator Custodian and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice Agent, on behalf of its intent to effect an Optional Sale on the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance portion of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of Collateral subject to such Optional Sale shall be deposited into to the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative AgentBorrower, in its sole and absolute discretion (upon recordable form if necessary, as the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), Borrower may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salereasonably request.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (HMS Income Fund, Inc.)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except as otherwise agreed immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is maintained or improved (other than the Minimum Diversity Test which must be satisfied);
(B) the Minimum Equity Test is satisfied;
(C) the Borrowing Base is greater than or equal to the Advance outstanding;
(D) no Event of Default, Unmatured Event of Default or Servicer Default shall have occurred and be continuing; and
(E) the Aggregate Eligible Collateral Obligation Amount of all Collateral Obligations sold by the Administrative Agent pursuant Borrower during the then-current calendar year does not exceed 20% of the highest Aggregate Eligible Collateral Obligation Amount on any day of such calendar year.
(ii) at least one (1) Business Day prior to Section 2.07(j)(i)(A)the date of any Optional Sale, the Borrower Servicer, on behalf of the Borrower, shall have provided to give the Administrative Agent (with a copy to the Collateral Facility Agent, the Collateral Administrator Custodian and the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior Agent written notice of its intent such Optional Sale, which notice shall identify the related Collateral subject to effect an such Optional Sale on and the expected proceeds from such Optional Sale Dateand include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, (ii) demonstrating that the purchase price in cash deposited in the Collection Account with respect to the Optional Sale Borrowing Base is at least greater than or equal to the aggregate Outstanding Loan Balance Advance outstanding and (y) a certificate of the Loan Assets being sold and purchased Servicer substantially in the form of Exhibit F‑3 requesting the release of the related Collateral Obligation File in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), such Optional Sale;
(iii) 100% of the net proceeds of such Optional Sale shall be deposited into made by the Collection Account to be disbursed Servicer, on behalf of the Borrower (A) in accordance with Section 2.04 hereofthe Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type); DOCPROPERTY DocID \* MERGEFORMAT USActive 61774393.5 -71-
(iv) no event if such Optional Sale is to an Affiliate of the Borrower or the Servicer, the Facility Agent has occurred and given its prior written consent (if such Optional Sale is continuing, or would result from for a purchase price less than 97% of par); and
(v) on the date of such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result all proceeds from such Optional Sale will be deposited directly into the Collection Account.
(b) In connection with any Optional Sale, which constitutes an Unmatured Event following deposit of Default all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Borrower without recourse, representation or a Borrowing Base Deficiency; providedwarranty all of the right, that title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so long as all other conditions in transferred shall be released from the Lien of this clause Agreement.
(c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of (i) one outside counsel to the Agreement are satisfied Facility Agent, each Agent and each Lender in fullconnection with any Optional Sale (provided that in the event of any conflict of interest, the Administrative Facility Agent (and any Agent or Lender that is an Affiliate of the Facility Agent, in its sole ) shall be entitled to separate counsel from each other Agent and absolute discretion (upon the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset Lender) and demonstrating compliance with clause (iv) above in connection therewith), may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable one outside counsel to the Loan Assets Collateral Agent and the Collateral Custodian in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Agent, on behalf of the Secured Parties, in the Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the portion of the Collateral subject to an such Optional SaleSale to the Borrower, in recordable form if necessary, as the Borrower may reasonably request.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (SCP Private Credit Income BDC LLC)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), subject to the following terms and conditions:
(i) immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied;
(B) the Minimum Equity Test is satisfied;
(C) the Borrowing Base is greater than or equal to the Advances outstanding;
(D) the Reference Asset Aggregate Amount is least equal to the Reference Asset Minimum Amount; and
(E) no Facility Termination Event, Unmatured Facility Termination Event, Unmatured Servicer Default or Servicer Default shall have occurred and be continuing;
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Servicer, on behalf of the Borrower, shall give the Administrative Agent, the Collateral Custodian and the Collateral Agent written notice of such Optional Sale, which notice shall identify the related Collateral subject to such Optional Sale and the expected proceeds from such Optional Sale and include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating that the Borrowing Base is greater than or equal to the Advances outstanding and (y) a certificate of the Servicer substantially in the form of Exhibit F-3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iii) such Optional Sale shall be made by the Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Servicer, the Administrative Agent has given its prior written consent; provided, however, in no event shall the Collateral Obligation Amount for Defaulted Collateral Obligations conveyed by the Borrower to the Equityholder exceed 10% of the aggregate Collateral Obligation Amount of all Transferred Collateral Obligations conveyed by the Equityholder to the Borrower in accordance with the terms of the Sale and Contribution Agreement; and
(v) on the date of such Optional Sale, all proceeds from such Optional Sale will be deposited directly into the Collection Account.
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Borrower without recourse, representation or warranty all of the consent right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Administrative Agent; so long as (i) except as otherwise agreed by the Administrative Agent pursuant to Section 2.07(j)(i)(A), the Borrower shall have provided to the Administrative Agent (with a copy to the Collateral Agent, the Collateral Administrator Custodian, each Agent and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice Agent, on behalf of its intent to effect an Optional Sale on the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance portion of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of Collateral subject to such Optional Sale shall be deposited into to the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative AgentBorrower, in its sole and absolute discretion (upon recordable form if necessary, as the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), Borrower may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salereasonably request.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Business Development Corp of America)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent following terms and conditions:
(i) immediately after giving effect to such Optional Sale:
(A) except as set forth in clause (E)(6) below, each Collateral Quality Test is satisfied, or if not satisfied, the degree of compliance with each Collateral Quality Test is maintained or improved;
(B) the Minimum Equity Condition is satisfied;
(C) the Advances outstanding shall not exceed the lower of (x) the Borrowing Base or (y) the Maximum Availability;
(1) no Facility Termination Event, Unmatured Facility Termination Event, Unmatured Services Provider Event of Default or Services Provider Event of Default shall have occurred and be continuing (provided, that, if an Unmatured Facility Termination Event is continuing, the Borrower may make an Optional Sale if, after giving effect to such Optional Sale, such event is cured (although, for the avoidance of doubt, such event shall be continuing for all purposes hereunder until the settlement date of such Optional Sale)) and (2) no Unmatured Equityholder Credit Event shall have occurred;
(E) the Aggregate Eligible Collateral Obligation Amount of all Collateral Obligations sold by the Borrower during the then-current calendar year does not exceed 30% of the Administrative Agenthighest Aggregate Eligible Collateral Obligation Amount on any day of such calendar year; provided, that, this clause (E) shall not apply to:
(1) any Optional Sale made to cure one or more Collateral Quality Tests (so long as, immediately following such Optional Sale, (I) each Collateral Quality Test (other than the Minimum Diversity Test) is satisfied, or if not satisfied, the degree of compliance with each such test or condition is maintained or improved, (II) the Minimum Equity Condition is satisfied, (III) the Advances outstanding do not exceed either the Borrowing Base or the Maximum Availability and (IV) the Minimum Diversity Test is satisfied);
(2) any Optional Sale made to reduce the Advances outstanding to be less than the Borrowing Base or the Maximum Availability or the Minimum Equity Condition (so long as, immediately following such Optional Sale, (I) the Minimum Equity Condition is satisfied, (II) the Advances outstanding do not exceed either the Borrowing Base or the Maximum Availability and (III) the Minimum Diversity Test is satisfied);
(3) any Optional Sale of any Collateral Obligation with a Discount Factor less than par, so long as (iI) except during the Revolving Period, such Collateral Obligation is sold at a price (expressed as otherwise agreed a percentage of par) not less than its Discount Factor and (II) after the Revolving Period, such Collateral Obligation is either (x) sold at a price that is not less than the outstanding principal amount of such Collateral Obligation or (y) sold at a price that is less than the outstanding principal amount of such Collateral Obligation and the Borrower receives a contribution to capital from the Equityholder at least equal to the difference between such outstanding principal amount and such price;
(4) any Optional Sale of a Collateral Obligation that has a Collateral Obligation Amount of zero;
(5) any Optional Sale of any portion of a Collateral Obligation constituting an Excess Concentration; and
(6) any Optional Sale to effect a Permitted Securitization if (1) such sale is effected in accordance with clause (iv) below, (2) immediately following such Optional Sale, each Collateral Quality Test (other than the Minimum Diversity Test) is satisfied, or if not satisfied, the degree of compliance with each Collateral Quality Test is maintained or improved and (3) the Minimum Diversity Test is satisfied; and
(F) as of the date the Borrower commits to such Optional Sale, the aggregate Principal Balance of all Defaulted Collateral Obligations sold by the Administrative Borrower to the Equityholder or its Affiliates shall not exceed 15% of the highest aggregate Principal Balance of all Eligible Collateral Obligations on any day during the twelve-month period preceding such date (or such higher amount approved by the Facility Agent pursuant in its sole discretion).
(ii) at least one (1) Business Day prior to Section 2.07(j)(i)(Athe date of any Optional Sale, the Services Provider shall give the Facility Agent, each Agent, the Collateral Custodian and the Collateral Agent written notice of such Optional Sale, which notice shall identify the related Collateral subject to such optional sale and the expected proceeds from such Optional Sale and include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating compliance with clauses (a)(i)(A), (B) and (C) above and all other conditions set forth herein are satisfied and (y) a certificate of the Services Provider substantially in the form of Exhibit F-3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iii) such Optional Sale shall be made by the Services Provider, on behalf of the Borrower shall have (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Services Provider, such Optional Sale is made on an arms-length basis at a price at least equal to the Administrative fair market value of the Collateral Obligation being sold and the Facility Agent has given its prior written consent (which shall not be unreasonably withheld, conditioned or delayed) unless such Optional Sale is made at a price at least equal to (x) during the Revolving Period, the Collateral Obligation Amount of the Collateral Obligation being sold or (y) after the end of the Revolving Period, the outstanding principal amount of such Collateral Obligation (or at a price that is less than the outstanding principal amount of such Collateral Obligation but not less than the fair market value of such Collateral Obligation and the Borrower receives a contribution to capital from the Equityholder at least equal to the difference between such outstanding principal amount and such price); and
(v) on the date of such Optional Sale, all proceeds from such Optional Sale will be deposited directly into the Collection Account.
(b) In connection with a copy any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Borrower (or the purchaser thereof from the Borrower) without recourse, representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Facility Agent, the Collateral Agent, the Collateral Administrator Custodian, each Agent and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice Agent, on behalf of its intent to effect an Optional Sale on the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance portion of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of Collateral subject to such Optional Sale shall be deposited into to the Collection Account to be disbursed Borrower, in accordance with Section 2.04 hereofrecordable form if necessary, and (iv) no event has occurred and is continuingas the Borrower, or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative Agent, in Services Provider on its sole and absolute discretion (upon the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith)behalf, may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salereasonably request.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Owl Rock Capital Corp)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except as otherwise agreed by the Administrative Agent pursuant immediately after giving effect to Section 2.07(j)(i)(A), the Borrower shall have provided to the Administrative Agent (with a copy to the Collateral Agent, the Collateral Administrator and the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice of its intent to effect an such Optional Sale on the Optional Sale Date, and any related application of proceeds therefrom:
(iiA) (1) the purchase price in cash deposited in Minimum Diversity Test is satisfied and (2) each Collateral Quality Test (other than the Collection Account Minimum Diversity Test) is satisfied (or, with respect to any Collateral Quality Test other than the Optional Sale is at least equal Minimum Diversity Test that was not satisfied immediately prior to the aggregate Outstanding Loan Balance of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of such Optional Sale shall be deposited into the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an the extent of compliance therewith will be maintained or improved);
(B) the Minimum Equity Test is satisfied;
(1) the Advances Outstanding do not exceed the Borrowing Base Measure and (2) the Foreign Currency Sublimit Compliance Test is satisfied; and;
(D) no Event of Default, Unmatured Event of Default, Unmatured Servicer Default and no event has or Servicer Default shall have occurred and is be continuing, or would result from such Optional Sale, which constitutes unless (1) in the case of an Unmatured Event of Default or a Borrowing Base DeficiencyUnmatured Servicer Default, the net cash proceeds from such Optional Sale are applied in an amount equal to the amount necessary to cure such Unmatured Event of Default or Unmatured Servicer Default or (2) in the case of an Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default, so long as such Optional Sale occurs no later than five (5) calendar days following the occurrence of such Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default, the net cash proceeds from such Optional Sale are applied in an amount equal to the Advances Outstanding and all other Obligations as of such date of determination; provided, however, that so long as all other conditions in the Facility Agent may waive the requirements of this clause (cD) and the Agreement are satisfied in full, the Administrative Agent, in its sole discretion; and
(E) the quotient (expressed as a percentage) of (1) the Aggregate Eligible Collateral Obligation Amount of all Collateral Obligations sold by the Borrower during the then-current calendar year divided by (2) the Highest Eligible Collateral Obligation Amount for such calendar year shall not exceed 40%; provided that, the quotient (expressed as a percentage) of (x) the Aggregate Eligible Collateral Obligation Amount of all Collateral Obligations (other than Broadly Syndicated Loans) sold by the Borrower during the then-current calendar year divided by (y) the Highest Eligible Collateral Obligation Amount for such calendar year shall not exceed 20%;
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Servicer, on behalf of the Borrower, shall give the Facility Agent, the Collateral Custodian and absolute discretion the Collateral Agent written notice of such Optional Sale, which notice shall identify the related Collateral subject to such Optional Sale and the expected proceeds from such Optional Sale and shall (upon x) include an Officer’s Certificate computed as of the delivery date of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset such request and after giving effect to such Optional Sale, demonstrating compliance with clause (i)(C) above and (y) a certificate of the Servicer substantially in the form of Exhibit F-3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iii) such Optional Sale shall be made by the Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) above the Facility Agent has given its prior written consent in connection therewith)its sole discretion (1) if such Optional Sale is to an Affiliate of the Borrower or the Servicer or (2) if the sale price for any sold Collateral Obligation is less than the greater of (x) the fair market value of such Collateral Obligation, may permit (y) the offset purchase price of such Collateral Obligation and (a “Permitted Offset”z) an amount equal to the Discount Factor of such Collateral Obligation multiplied by the Servicer against Principal Balance thereof;
(v) on the required purchase price to date of such Optional Sale, all proceeds from such Optional Sale (x) will be deposited in directly into the Collection Account and (y) with respect to any sold Collateral Obligation, will be in the same Eligible Currency as such Collateral Obligation; and
(vi) in selecting the Collateral Obligations for sale, no selection procedures were employed by the Borrower, the Servicer or any Affiliate thereof that are adverse to the interests of any Agent or Lender.
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Borrower without recourse, representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under clause (iisuch Collateral Obligation(s) or (iii) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Section 2.07(cAgreement.
(c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Facility Agent, the Collateral Agent and the Collateral Custodian in connection with any Optional Sale (andincluding, if applicablebut not limited to, clause expenses incurred in connection with the release of the Lien of the Collateral Agent, on behalf of the Secured Parties, in the Collateral in connection with such Optional Sale).
(id) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable Borrower, execute such instruments of release with respect to the Loan Assets portion of the Collateral subject to an such Optional SaleSale to the Borrower, in recordable form if necessary, as the Borrower may reasonably request.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Crestline Lending Solutions, LLC)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent of following terms and conditions:
1. immediately after giving effect to such Optional Sale:
a. each Collateral Quality Test is satisfied (or, if any Collateral Quality Test is not satisfied, it is maintained or improved);
b. the Administrative AgentMinimum Equity Condition is satisfied; so long as USActive 31506654.2531506654.28
(i) except as otherwise agreed by the Administrative Agent Borrowing Base is greater than or equal to the Advances outstanding and (ii) the Foreign Currency Advance Amount shall not exceed the Foreign Currency Sublimit; and
d. no Facility Termination Event, Unmatured Facility Termination Event, Unmatured Investment Manager Event of Default or Investment Manager Event of Default shall have occurred and be continuing; provided that, no more than once in any twelve-month period, if an Unmatured Facility Termination Event or Unmatured Investment Manager Event of Default is continuing, the Borrower may make an Optional Sale if, after giving effect to such Optional Sale, such event is cured (although, for the avoidance of doubt, such event shall be continuing for all purposes hereunder until the settlement date of such Optional Sale); provided, notwithstanding the above, that the Borrower may make (i) any Optional Sale of any Collateral Obligation that, in the Investment Manager’s reasonable judgment, has a significant risk of declining in credit quality and, with the lapse of time, becoming a Defaulted Collateral Obligation, if after giving effect to such Optional Sale, (a) no Facility Termination Event is continuing and (b) the aggregate Principal Balance of all such Collateral Obligations sold pursuant to Section 2.07(j)(i)(A)this proviso in any twelve-month period does not exceed 15% of the Aggregate Eligible Collateral Obligation Amount in effect on the date of such sale during such twelve month period or (ii) any Optional Sale of any Collateral Obligation if (x) the sale price is equal to or greater than the Principal Balance of such Collateral Obligation and (y) the proceeds from such Optional Sale are applied to reduce the Advances.
1. at least one (1) Business Day prior to the date of any Optional Sale, the Borrower shall have provided cause the Investment Manager to give the Administrative Agent (with a copy to the Collateral Facility Agent, each Agent, the Collateral Administrator Custodian and the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior Agent written notice of its intent to effect an Optional Sale on the Optional Sale Date, (ii) the purchase price in cash deposited in the Collection Account with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of such Optional Sale shall be deposited into the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, or would result from such Optional Sale, which constitutes notice shall identify the related Collateral subject to such Optional Sale and the expected proceeds from such Optional Sale and include (x) an Event Officer’s Certificate computed as of Default the date of such request and no event has occurred and is continuing, or would result from after giving effect to such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provideddemonstrating compliance with clauses (a)(i)(A), that so long as (B) and (C) above and all other conditions in this clause (c) and the Agreement set forth herein are satisfied in full, and (y) a certificate of the Administrative Agent, in its sole and absolute discretion (upon the delivery of a Notice of Permitted Securitization Investment Manager substantially in the form attached as of Exhibit A setting forth F‑3 requesting the proposed offset and demonstrating compliance with clause (iv) above release of the related Collateral Obligation File in connection therewith), may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an with such Optional Sale.;
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Optional Sales. The Borrower may (a) Prior to the occurrence of an Unmatured Termination Event or a Termination Event, on any Optional Sale Date, the Borrower shall have the right to prepay all or a portion of the Advances Outstanding in connection with the a sale or other transfer of all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except as otherwise agreed by the Administrative Agent pursuant to Section 2.07(j)(i)(A), the The Borrower shall have provided to given the Administrative Agent (with a copy to the Collateral Agent, the Collateral Administrator and the Collateral CustodianTrustee) not more than 45 days’ and at least 10 days45 Business Days’ prior written notice of its intent to effect an Optional Sale on the Sale, and (other than an Optional Sale Date, which results in the termination in full of this Agreement pursuant to Section 2.5(a)) the Administrative Agent has consented in writing to such Optional Sale in its sole discretion unless such notice and consent are waived or such notice period is reduced by the Administrative Agent;
(ii) Any Optional Sale shall be in connection with either (A) a Term Securitization or (B) the purchase price repayment of all Aggregate Unpaids and termination in cash deposited whole of the Facility Amount pursuant to Section 2.5(a);
(iii) Unless an Optional Sale is to be effected on a Payment Date (in which case the Collection Account relevant calculations with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of such Optional Sale shall be deposited into reflected on the Collection Account applicable Servicing Report), the Servicer shall deliver to be disbursed the Administrative Agent a certificate and evidence to the reasonable satisfaction of the Administrative Agent (with a copy to the Trustee) (which evidence may consist solely of a certificate from the Servicer) that the Borrower shall have sufficient funds on the related Optional Sale Date to effect the contemplated Optional Sale in accordance with Section 2.04 hereofthis Agreement. In effecting an Optional Sale, and the Borrower may use the Proceeds of sales of the Collateral to repay all or a portion of the Aggregate Unpaids;
(iv) no event has occurred After giving effect to any Optional Sale (other than an Optional Sale that results in a termination in full of this Agreement pursuant to Section 2.5(a)), (a) the Availability shall be greater than or equal to $0 (unless otherwise agreed in writing by the Administrative Agent), (b) the representations and is continuingwarranties contained in Sections 4.1 and 4.2 hereof shall continue to be correct in all material respects, or would result from such Optional Sale, which constitutes except to the extent relating to an Event of Default earlier date and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and neither an Unmatured Termination Event nor a Termination Event shall have resulted. On the Agreement are satisfied in fullrelated Optional Sale Date, the Administrative Agent, each Lender Agent on behalf of the applicable Lender, the Hedge Counterparties and the Trustee, as applicable, shall have received, as applicable, in its sole immediately available funds, an amount equal to the sum of (a) the portion of the Advances Outstanding to be prepaid that are attributable to the Collateral to be sold by the Borrower in connection with such Optional Sale plus (b) an amount equal to all unpaid Interest to the extent reasonably determined by the Administrative Agent and absolute discretion the Lender Agents to be attributable to that portion of the Advances Outstanding to be paid in connection with the Optional Sale plus (upon c) an aggregate amount equal to the delivery sum of all other amounts due and owing to the Administrative Agent, the Trustee, the Lender Agents, the Lenders, the Affected Parties and the Hedge Counterparties, as applicable, under this Agreement and the other Transaction Documents, to the extent accrued to such date (and, in the case of a Notice partial sale of Permitted Securitization the Collateral, to accrue thereafter to the next Payment Date) (including, without limitation, Breakage Costs, Hedge Breakage Costs and any other payments owing to the Hedge Counterparties in respect of the termination of any Hedge Transaction) in each case to the extent attributable to the Collateral to be sold by the Borrower in connection with such Optional Sale (or, in the form attached as Exhibit A setting forth case of a repayment in full and termination of the Facility Amount, all Aggregate Unpaids at such time); provided that the Administrative Agent and each Lender Agent shall have the right to determine whether the amount paid (or proposed offset to be paid) by the Borrower on the Optional Sale Date is sufficient to satisfy the requirements of clauses (iii) and demonstrating compliance with clause (iv) above and is sufficient to reduce the Advances Outstanding to the extent requested by the Borrower in connection with the Optional Sale;
(v) On or prior to each Optional Sale Date, the Borrower shall have delivered to the Administrative Agent a list specifying all Loans to be sold and assigned pursuant to such Optional Sale.
(b) In connection with any Optional Sale, the Borrower shall pay to the Administrative Agent, for the account of each Lender, any Prepayment Premium payable in connection therewith), may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Sale.
Appears in 1 contract
Sources: Loan and Servicing Agreement (NewStar Financial, Inc.)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Contracts (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except as otherwise agreed immediately after giving effect to such Optional Sale:
(A) each of the Collateral Quality Tests and the Interest Spread Measure is satisfied;
(B) the Minimum Equity Condition is satisfied;
(C) the Borrowing Base is greater than or equal to the Advances outstanding;
(D) the Aggregate Contracts Balance of all Contracts sold by the Administrative Agent pursuant to Section 2.07(j)(i)(ABorrower during the then-current calendar year does not exceed 10% of the highest Aggregate Contracts Balance (measured on a rolling twelve month basis); and
(E) no Event of Default, the Borrower Unmatured Event of Default, Unmatured Collateral Manager Default or Collateral Manager Default shall have provided occurred and be continuing;
(ii) at least one (1) Business Day prior to the Administrative Agent (with a copy to the Collateral Agentdate of any Optional Sale, the Collateral Administrator Manager, on behalf of the Borrower, shall give the Facility Agent and the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior Custodian written notice of its intent such Optional Sale, which notice shall identify the related Collateral subject to effect an such Optional Sale on and the expected proceeds from such Optional Sale Date, and include (iix) the purchase price in cash deposited in the Collection Account with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance an Officer’s Certificate computed as of the Loan Assets being sold date of such request and purchased in connection therewithafter giving effect to such Optional Sale, and otherwise complies with demonstrating that the pricing requirements conditions set forth in clause (ha)(i) below), above are satisfied and (y) a certificate of the Collateral Manager substantially in the form of Exhibit F-3 requesting the release of the related Contract File in connection with such Optional Sale;
(iii) 100% of the net proceeds of such Optional Sale shall be deposited into made by the Collection Account to be disbursed Collateral Manager, on behalf of the Borrower (A) in accordance with Section 2.04 hereofthe Credit and Collection Policy, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) no event the Facility Agent has occurred and given its prior written consent if (x) such Optional Sale is continuingto an Affiliate of the Borrower or the Collateral Manager or (y) after the end of the Revolving Period, or would result from such Contract is sold at a price lower than the par value of such Contract; and
(v) on the date of such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result all proceeds from such Optional Sale will be deposited directly into the Collection Account.
(b) In connection with any Optional Sale, which constitutes an Unmatured Event following deposit of Default all proceeds from such Optional Sale into the Collection Account, all of the right, title and interest of the Facility Agent for the benefit of the Secured Parties in, to and under such Contract(s) and Related Security subject to such Optional Sale and such portion of the Collateral shall be transferred to the Borrower and shall be released from the Lien of this Agreement without recourse, representation or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause warranty.
(c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Agreement are satisfied in fullFacility Agent, the Administrative Custodian and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Facility Agent, in its sole and absolute discretion (upon on behalf of the delivery of a Notice of Permitted Securitization Secured Parties, in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above Collateral in connection therewithwith such Optional Sale).
(d) In connection with any Optional Sale, may permit the offset (a “Permitted Offset”) by Facility Agent shall, at the Servicer against sole expense of the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) Borrower, execute such instruments of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable release with respect to the Loan Assets portion of the Collateral subject to an such Optional SaleSale to the Borrower, in recordable form if necessary, as the Borrower may reasonably request.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (TriplePoint Venture Growth BDC Corp.)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except as otherwise agreed by immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied (or, if any Collateral Quality Test is not satisfied, it is improved);
(B) the Administrative Agent Minimum Equity Condition is satisfied;
(C) the Borrowing Base is greater than or equal to the Advances outstanding; and
(D) no Facility Termination Event, Unmatured Facility Termination Event, Unmatured Servicer Event of Default or Servicer Event of Default shall have occurred and be continuing; provided that, no more than once in any twelve-month period, if an Unmatured Facility Termination Event or Unmatured Servicer Event of Default is continuing, the Borrower may make an Optional Sale if, after giving effect to such Optional Sale, such event is cured (although, for the avoidance of doubt, such event shall be continuing for all purposes hereunder until the settlement date of such Optional Sale); provided, notwithstanding the above, that the Borrower may make (i) any Optional Sale of any Collateral Obligation that, in the Servicer’s reasonable judgment, has a significant risk of declining in credit quality and, with the lapse of time, becoming a Defaulted Collateral Obligation, if after giving effect to such Optional Sale, (a) no Facility Termination Event is continuing and (b) the aggregate Principal Balance of all such Collateral Obligations sold pursuant to Section 2.07(j)(i)(A)this proviso in any twelve-month period does not exceed 20% of the Aggregate Eligible Collateral Obligation Amount in effect on the date of such sale; provided that if such Optional Sale is made to satisfy any Collateral Quality Test or, if not satisfy, maintain or improve, then such Optional Sale shall not affect compliance with clause (b) above; or (ii) any Optional Sale of any Collateral Obligation if (x) the sale price is equal to or greater than the Principal Balance of such Collateral Obligation and (y) the proceeds from such Optional Sale are applied to reduce the Advances.
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Borrower shall have cause the Servicer to give the Facility Agent, each Agent the Collateral Custodian and the Collateral Agent written notice of such Optional Sale, which notice shall identify the related Collateral subject to such optional sale and the expected proceeds from such Optional Sale and include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating compliance with clauses (a)(i)(A), (B) and (C) above and all other conditions set forth herein are satisfied and (y) a certificate of the Servicer substantially in the form of Exhibit F-3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iii) such Optional Sale shall be made by the Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Servicer, the Facility Agent has given its prior written consent (such consent shall not be required if such Optional Sale is sold at par); and
(v) on the date of such Optional Sale, all proceeds from such Optional Sale will be sent directly into the Collection Account.
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Administrative Borrower (or the purchaser thereof from the Borrower) without recourse, representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(with a copy c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Facility Agent, the Collateral Agent, the Collateral Administrator and Securities Intermediary, the Collateral Custodian) not more than 45 days’ , each Agent and at least 10 days’ prior written notice of its intent to effect an each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Agent, on behalf of the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance portion of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of Collateral subject to such Optional Sale shall be deposited into to the Collection Account to be disbursed Borrower, in accordance with Section 2.04 hereofrecordable form if necessary, and (iv) no event has occurred and is continuingas the Borrower, or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative Agent, in Servicer on its sole and absolute discretion (upon the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith)behalf, may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salereasonably request.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Blackstone Private Credit Fund)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent following terms and conditions:
(i) immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is maintained or improved (with the exception of the Administrative AgentMinimum Diversity Test which must be satisfied);
(B) the Minimum Equity Test is satisfied;
(C) the Advances outstanding shall not exceed the Borrowing Base or the Maximum Availability;
(D) no Event of Default or Unmatured Event of Default shall have occurred and be continuing; provided, however, that no Event of Default shall have existed prior to such Optional Sale; and
(E) the Aggregate Eligible Collateral Obligation Amount of all Collateral Obligations sold by the Borrower during the then-current calendar year does not exceed 20% of the highest Aggregate Eligible Collateral Obligation Amount on any day of such calendar year; provided that this clause (E) shall not apply to:
(1) any repurchase or substitution of Warranty Collateral Obligations pursuant to Section 6.1 of the Sale Agreement;
(2) any Optional Sale made to cure one or more Collateral Quality Tests, reduce the Advances outstanding to be less than the Borrowing Base or the Maximum Availability or the Minimum Equity Test (so long as (I) each Collateral Quality Test and the Minimum Equity Test are passing and (II) the Advances outstanding do not exceed either the Borrowing Base or the Maximum Availability following such sale);
(3) any Optional Sale of any Credit Risk Obligation or any Collateral Obligation with a Discount Factor less than par, so long as such Collateral Obligation is sold for not less than (I) during the Revolving Period, the Discount Factor; provided that such Optional Sale is (i) except completed on an arm’s length basis and (ii) for only up to 10% of the highest Aggregate Eligible Collateral Obligation Amount, and (II) otherwise, par;
(4) any Optional Sale made, directly or indirectly, to one or more affiliates of the Borrower under one or more credit facilities for which the Facility Agent or one of its Affiliates acts as otherwise agreed the principal agent or principal lender thereon;
(5) any Optional Sale of a Collateral Obligation that has a Collateral Obligation Amount of zero;
(6) any Optional Sale of any portion of a Collateral Obligation constituting an Excess Concentration Amount; and
(7) any Optional Sale made in connection with an Eligible Securitization. Notwithstanding the foregoing in this subclause (E), if (i) such Optional Sale will (x) be for a price below 80% or, for any Collateral Obligation that has a Collateral Obligation Amount of zero, 60% of par or (y) result in an increase of the Effective Advance Rate or (ii) the Aggregate Eligible Collateral Obligation Amount of all Collateral Obligations sold by the Administrative Borrower during the then-current calendar year exceeds 20% of the highest Aggregate Eligible Collateral Obligation Amount on any day of such calendar year, in each case the Facility Agent shall have consented thereto in its sole discretion.
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Servicer, on behalf of the Borrower, shall give the Facility Agent, the Lenders, the Collateral Custodian and the Collateral Agent written notice of such Optional Sale, which notice shall identify the related Collateral subject to such Optional Sale and the expected proceeds from such Optional Sale and include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating that the Borrowing Base is greater than or equal to the Advances outstanding and (y) a certificate of the Servicer substantially in the form of Exhibit F-3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iii) such Optional Sale shall be made by the Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Servicer, the Facility Agent has given its prior written consent (if such Optional Sale is for a purchase price less than par); provided, that the aggregate Principal Balance of all Collateral Obligations and any Collateral Obligations for which a Revaluation Event as set forth in clauses (a), (b), (c) or (d) of the definition thereof shall have occurred, sold pursuant to Section 2.07(j)(i)(A)Optional Sales to an Affiliate of the Borrower or the Servicer from and after the Closing Date shall not exceed 15% of the highest Aggregate Eligible Collateral Obligation Amount in effect; provided further that the Principal Balance of all Collateral Obligation that are Defaulted Collateral Obligations sold pursuant to Optional Sales to an Affiliate of the Borrower or the Servicer from and after the Closing Date shall not exceed 10% of the highest Aggregate Eligible Collateral Obligation Amount in effect. Solely for the purposes of the provisos set forth in this clause, the Borrower Principal Balance shall have provided be determined without respect to any provision of this Agreement which would deem the value of such Collateral Obligation to be zero; and
(v) on the date of such Optional Sale, all proceeds from such Optional Sale will be deposited directly into the Collection Account.
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Administrative Borrower without recourse, representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(with a copy c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Facility Agent, the Collateral Agent, the Collateral Administrator Custodian, each Agent and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice Agent, on behalf of its intent to effect an Optional Sale on the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance portion of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of Collateral subject to such Optional Sale to the Borrower, in recordable form if necessary, as the Borrower may reasonably request.
(e) Notwithstanding anything in this Agreement to the contrary, Optional Sales shall be deposited into permitted with the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Event consent of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative Agent, in its sole and absolute discretion (upon the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above Facility Agent in connection therewith), may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by with an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional SaleEligible Securitization.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Vista Credit Strategic Lending Corp.)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent following terms and conditions:
(i) immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied (or, (1) if (x) any Collateral Quality Test (other than the Minimum Diversity Test) is not satisfied it is maintained or improved and (y) the Minimum Diversity Test is satisfied, or (2) the Facility Agent shall have consented to such sale, in its sole discretion);
(B) the Minimum Equity Test is satisfied;
(1) the Advances outstanding shall not exceed the Borrowing Base or the Maximum Availability and (2) the Foreign Currency Advance Amount shall not exceed the Foreign Currency Sublimit;
(D) no Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default shall have occurred and be continuing; provided that if such Optional Sale is being effected as part of or all of a plan that will fully cure an Unmatured Event of Default or Unmatured Servicer Default, such Optional Sale shall be permitted; and
(E) during the then-current calendar year, the Borrower will not have sold Collateral Obligations in Optional Sales with an aggregate Collateral Obligation Amount in excess of 20% of the Administrative Agenthighest Aggregate Eligible Collateral Obligation Amount as of any day during such calendar year; provided, notwithstanding clauses (A) through (C) above, so long as the Minimum Diversity Test is satisfied immediately after giving effect to such sale, the Borrower may make, solely during the Revolving Period, any Optional Sale of any Collateral Obligation if the sale price is equal to or greater than an amount equal to the Advance Rate multiplied by the greater of par and the related Purchase Price (expressed in Dollars) of such Collateral Obligation; provided, further, that clause (D) shall not apply to any Optional Sale of assets during an Unmatured Event of Default so long as (ix) except as otherwise agreed the sale price of such assets is equal to the fair market value thereof, (y) the proceeds of such sale are sufficient to cure such Unmatured Event of Default and (z) no more than three (3) such sales occur in any calendar year.
(ii) No later than the trade date of any Optional Sale, the Servicer, on behalf of the Borrower, shall give the Facility Agent, the Collateral Custodian and the Collateral Agent written notice (which may be via email to the Facility Agent, the Collateral Custodian and the Collateral Agent) of such Optional Sale, which notice shall identify the related Collateral subject to such Optional Sale and the expected proceeds from such Optional Sale and include (x) a written representation from the Servicer that, immediately after giving effect to such Optional Sale, the Minimum Equity Test is satisfied and (A) the Advances outstanding will not exceed (1) the Borrowing Base or (2) the Maximum Availability on such day and (B) the Foreign Currency Advance Amount will not exceed the Foreign Currency Sublimit and (y) a written calculation of the Diversity Score immediately after giving effect to such Optional Sale;
(iii) such Optional Sale shall be made by the Administrative Agent pursuant Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to Section 2.07(j)(i)(A)an Affiliate of the Borrower or the Servicer, the Borrower Facility Agent has given its prior written consent; and
(v) on the date of such Optional Sale, all proceeds from such Optional Sale (which proceeds shall have provided be in the same Eligible Currency as the related Collateral Obligation) will be deposited directly into the Collection Account.
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Administrative Borrower without recourse, representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(with a copy c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Facility Agent, the Collateral Agent, the Collateral Administrator Custodian, each Agent and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice Agent, on behalf of its intent to effect an Optional Sale on the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance portion of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of Collateral subject to such Optional Sale shall be deposited into to the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative AgentBorrower, in its sole and absolute discretion (upon recordable form if necessary, as the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), Borrower may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salereasonably request.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Oaktree Strategic Credit Fund)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), subject to the following terms and conditions:
(i) immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied (or, if any Collateral Quality Test is not satisfied, it is improved);
(B) the Minimum Equity Condition is satisfied;
(C) the Borrowing Base is greater than or equal to the Advances outstanding; and
(D) no Facility Termination Event, Unmatured Facility Termination Event, Unmatured Investment Manager Event of Default or Investment Manager Event of Default shall have occurred and be continuing; provided that, once in any twelve-month period, if an Unmatured Facility Termination Event or Unmatured Investment Manager Event of Default is continuing, the Borrower may make an Optional Sale if, after giving effect to such Optional Sale, such event is cured (although, for the avoidance of doubt, such event shall be continuing for all purposes hereunder until the settlement date of such Optional Sale); provided, notwithstanding the above, that the Borrower may make (i) any Optional Sale of any Collateral Obligation that, in the Collateral Manager’s reasonable judgment, has a significant risk of declining in credit quality and, with the lapse of time, becoming a Defaulted Collateral Obligation, if after giving effect to such Optional Sale, (a) no Facility Termination Event is continuing and (b) the aggregate Principal Balance of all such Collateral Obligations sold pursuant to this proviso in any twelve-month period does not exceed 15% of the Aggregate Eligible Collateral Obligation Amount in effect on the date of such sale, (ii) any Optional Sale of any Collateral Obligation if (x) the sale price is equal to or greater than the Principal Balance of such Collateral Obligation and (y) the proceeds from such Optional Sale are applied to reduce the Advances or (iii) any Optional Sale required as a result of the Required Sale Date.
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Borrower shall cause the Investment Manager to give the Administrative Agent, the Collateral Custodian and the Collateral Agent written notice of such Optional Sale, which notice shall identify the related Collateral subject to such optional sale and the expected proceeds from such Optional Sale and include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating compliance with clauses (A), (B) and (C) above and all other conditions set forth herein are satisfied and (y) a certificate of the Investment Manager substantially in the form of Exhibit F-3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iii) such Optional Sale shall be made by the Investment Manager, on behalf of the Borrower (A) in accordance with the Investment Management Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Investment Manager, the Administrative Agent has given its prior written consent (which shall not be unreasonably withheld, conditioned or delayed); and
(v) on the date of such Optional Sale, all proceeds from such Optional Sale will be sent directly into the Collection Account.
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Borrower (or the purchaser thereof from the Borrower) without recourse, representation or warranty all of the consent right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Administrative Agent; so long as (i) except as otherwise agreed by the Administrative Agent pursuant to Section 2.07(j)(i)(A), the Borrower shall have provided to the Administrative Agent (with a copy to the Collateral Agent, the Collateral Administrator Custodian, each Agent and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice Agent, on behalf of its intent to effect an Optional Sale on the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the portion of the Collateral subject to such Optional Sale is at least equal to the aggregate Outstanding Loan Borrower, in recordable form if necessary, as the Borrower, or the Investment Manager on its behalf, may reasonably request.
(e) Notwithstanding the foregoing, the Principal Balance of all Collateral Obligations (other than Warranty Collateral Obligations released to the Loan Assets being Equityholder pursuant to a dividend by the Borrower or Collateral Obligations sold and purchased to the Equityholder as a result of the Required Sale Date) sold pursuant to Section 7.10(a) to the Equityholder or an Affiliate thereof or released to the Equityholder pursuant to a dividend by the Borrower shall not in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100any twelve-month period exceed 20% of the net proceeds Net Purchased Loan Balance measured as of the date of such Optional Sale shall be deposited into the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, sale or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiencydividend; provided, that so long as the Principal Balance of all Defaulted Collateral Obligations (other conditions in this clause (c) and than Warranty Collateral Obligations released to the Agreement are satisfied in full, the Administrative Agent, in its sole and absolute discretion (upon the delivery of Equityholder pursuant to a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), may permit the offset (a “Permitted Offset”) dividend by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) Borrower or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable Collateral Obligations sold to the Equityholder as a result of the Required Sale Date) sold pursuant to Section 7.10(a) to the Equityholder or an Affiliate thereof or released to the Equityholder pursuant to a dividend by the Borrower shall not in any twelve-month period exceed 10% of the Net Purchased Loan Assets subject to an Optional SaleBalance measured as of the date of such sale or dividend.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS Investment Corp II)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), subject to the following terms and conditions:
(i) immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied (or, if any Collateral Quality Test is not satisfied, it is improved);
(B) The Minimum Equity Test is satisfied;
(C) the Borrowing Base is greater than or equal to the Advances outstanding; and
(D) no Event of Default, or Unmatured Event of Default, Unmatured Servicer Default or Servicer Default shall have occurred and be continuing; provided, that notwithstanding the above, the Borrower may at any time make (x) any Optional Sale of any Collateral Obligation that, in the Servicer’s reasonable judgment, has a significant risk of declining in credit quality and, with the lapse of time, becoming a Defaulted Collateral Obligation, if after giving effect to such Optional Sale, no Event of Default is continuing, (y) any Optional Sale of any Collateral Obligation if (I) the sale price is equal to or greater than the Principal Balance of such Collateral Obligation and (II) the proceeds from such Optional Sale are applied to reduce the Advances and (z) any Optional Sale required as a result of the Required Sale Date.
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Servicer, on behalf of the Borrower, shall give the Administrative Agent, the Collateral Custodian, the Collateral Agent and each Lender (via the Collateral Agent’s Website) written notice of such Optional Sale, which notice shall identify the related Collateral subject to such Optional Sale and the expected proceeds from such Optional Sale and include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating compliance with clauses (a)(i)(A), (B) and (C) above and all other conditions set forth in this Section 7.10 are satisfied and (y) a certificate of the Servicer substantially in the form of Exhibit F-3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iii) such Optional Sale shall be made by the Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Servicer, the Administrative Agent has given its prior written consent (which consent, if such Optional Sale is at par, shall not be unreasonably withheld, conditioned or delayed); and
(v) on the settlement date of such Optional Sale, all proceeds from such Optional Sale will be deposited directly into the Collection Account .
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Borrower without recourse, representation or warranty all of the consent right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Administrative Agent; so long as (i) except as otherwise agreed by the Administrative Agent pursuant to Section 2.07(j)(i)(A), the Borrower shall have provided to the Administrative Agent (with a copy to the Collateral Agent, the Collateral Administrator Custodian and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice Agent, on behalf of its intent to effect an Optional Sale on the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance portion of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of Collateral subject to such Optional Sale shall be deposited into to the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative AgentBorrower, in its sole and absolute discretion (upon recordable form if necessary, as the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), Borrower may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salereasonably request.
Appears in 1 contract
Optional Sales. (a) The Borrower may on shall have the right to sell (or direct any Optional Sale Date, prepay all or portion of the Advances Outstanding in connection with the sale or other transfer of Securitization Subsidiary to sell) all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), subject to the following terms and conditions:
(i) immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied or, if not satisfied, maintained or improved (unless waived by the Facility Agent in connection with a Permitted Securitization);
(B) the Minimum Equity Condition is satisfied;
(C) (1) the Borrowing Base is greater than or equal to the Advances Outstanding and (2) the Foreign Currency Advance Amount shall not exceed the Foreign Currency Sublimit multiplied by 102.5% (solely with respect to any Optional Sale of Collateral Obligations denominated in a currency other than Dollars); and
(D) to the knowledge of a Responsible Officer of the Borrower and the Servicer, no Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default shall have occurred and be continuing; provided that, (i) an Event of Default or Unmatured Event of Default may occur and be continuing if such Optional Sale (x) relates to the sale of a Specified Multiple of Recurring Revenue Loan as described in clause (ii) of the definition thereof or (y) cures any Specified Borrowing Base Breach or (ii) an Unmatured Event of Default, including any Borrowing Base Deficiency that is subject to cure pursuant to Section 2.10, may occur and be continuing if such Optional Sale entirely cures such Unmatured Event of Default; provided further that, notwithstanding the foregoing or anything herein to the contrary, the Borrower may make any Optional Sale, the trade date for which occurred prior to the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default (and which Optional Sale was otherwise permitted hereunder as of such trade date), and the settlement date for which is scheduled to occur on a date following such Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default;
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Servicer, on behalf of the Borrower, shall give the Facility Agent, the Collateral Custodian and the Collateral Agent written notice of such Optional Sale, which notice shall identify the related Collateral subject to such Optional Sale and the expected proceeds from such Optional Sale and include an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating that the Borrowing Base is greater than or equal to the Advances Outstanding;
(iii) such Optional Sale shall be made by the Servicer, on behalf of the applicable Loan Party (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the applicable Loan Party makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Servicer after the end of the Revolving Period, (x) the proceeds received for each Collateral Obligation sold in connection therewith shall be no less than the greater of (A) the fair market value and (B) the Collateral Obligation Amount (without giving effect to the proviso to the definition thereof) of such Collateral Obligation or (y) otherwise, the Facility Agent has given its prior written consent;
(v) in no event shall the sum of the aggregate Principal Balance of Collateral Obligations sold pursuant to an Optional Sale (other than sales to any Existing G▇▇▇▇ BDC CLO pursuant to Section 9.36) exceed 25% of the highest aggregate Principal Balance of all Collateral Obligations at any time during the preceding 12 calendar months; provided that any Collateral Obligations transferred pursuant to an Optional Sale to the Servicer or an Affiliate of the Servicer with respect to a new issue collateralized loan obligation managed by the Servicer or an Affiliate of the Servicer and underwritten, arranged and/or structured by the Facility Agent or any Affiliate of the Facility Agent shall be excluded from the foregoing limit; provided further that, any Optional Sale of a Specified Multiple of Recurring Revenue Loan or Permitted Collateral Obligation shall be excluded from the foregoing limit; and
(vi) on the date of such Optional Sale, all proceeds from such Optional Sale will be deposited directly into the Borrower Collection Account.
(b) In connection with any Optional Sale, simultaneously with the deposit of all proceeds from such Optional Sale into the Borrower Collection Account, the Collateral Agent shall be deemed to release and transfer to the Borrower without recourse, representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(c) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the portion of the Collateral subject to such Optional Sale to the Borrower, in recordable form if necessary, as the Borrower may reasonably request.
(d) The purchase price for any Collateral Obligation sold by any Loan Party to any special purpose vehicle wholly or partly owned by the Equityholder, the Servicer or its Affiliates may be payable (at the discretion of the Servicer) as follows: (i)(A) during the Revolving Period, the carrying value of such Collateral Obligation and (B) following the Revolving Period, an amount equal to the greater of (x) fair market value and (y) the Discount Factor and (ii) during the Revolving Period and other than in connection with purchases relating to a Permitted Securitization that has priced but has not yet closed, so long as no Unmatured Event of Default or Event of Default has occurred and is continuing, the remainder of the purchase price not paid in cash will be deemed to have been received by the Borrower and the Borrower shall be deemed to simultaneously dividend such portion of the Collateral Obligation to the Equityholder.
(e) If a Permitted Securitization has priced and it is intended that the portfolio for such Permitted Securitization include certain Collateral Obligations (or portions thereof) in the Collateral, such Collateral Obligations shall not be subject to any sale or disposition restriction pursuant to this Section 9.34, even if an Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default has occurred prior to the date such Permitted Securitization has priced; it being understood that the proceeds of such Permitted Securitization shall be used to pay down the Advances Outstanding and other Obligations in full pursuant to Section 8.3 if an Event of Default has occurred and is continuing at the time such Collateral Obligations are sold in connection with such Permitted Securitization.
(f) Notwithstanding anything herein to the contrary, a Loan Party (or the Servicer on behalf of the Borrower or any Securitization Subsidiary) may sell in the manner directed by the Servicer any Permitted Collateral Obligation, equity security, Collateral Obligation (or portion thereof) constituting the Excess Concentration Amount or any asset that does not satisfy the definition of “Eligible Collateral Obligation” at any time during the Revolving Period and without restriction (including without regard to any other conditions hereunder applicable to Optional Sales and without consent of the Administrative Facility Agent; ) so long as (i) except as otherwise agreed by the Administrative Agent pursuant to Section 2.07(j)(i)(A), the Borrower shall have provided to the Administrative Agent (with a copy to the Collateral Agent, the Collateral Administrator no Event of Default has occurred is and the Collateral Custodian) not more than 45 days’ is continuing and at least 10 days’ prior written notice of its intent to effect an Optional Sale on the Optional Sale Date, (ii) no Responsible Officer of any Loan Party, the purchase price in cash deposited in Servicer or the Collection Account with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance Equityholder has knowledge that an Unmatured Event of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of such Optional Sale shall be deposited into the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event Default has occurred and is continuing.
(g) Notwithstanding anything herein to the contrary, a Loan Party (or would result from such Optional Sale, which constitutes an Event the Servicer on behalf of Default and no event has occurred and is continuing, the Borrower or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (cany Securitization Subsidiary) and the Agreement are satisfied in full, the Administrative Agent, in its sole and absolute discretion (upon the delivery of a Notice of Permitted Securitization may sell in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), may permit the offset (a “Permitted Offset”) manner directed by the Servicer against the required purchase price any Collateral Obligation without restriction (including without regard to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement any other conditions hereunder applicable to Optional Sales and without consent of the Loan Assets subject to an Optional SaleFacility Agent) in connection with the payment in full of the Obligations.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Golub Capital Direct Lending Corp)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except as otherwise agreed by immediately after giving effect to such Optional Sale (together with such other Optional Sales and other actions to be effected in connection with any cure of a Borrowing Base deficiency in accordance with Section 8.1(e)):
(A) each Collateral Quality Test is satisfied (or, if any Collateral Quality Test is not satisfied, it is improved);
(B) the Administrative Agent pursuant Minimum Equity Condition is satisfied;
(C) the Borrowing Base is greater than or equal to Section 2.07(j)(i)(A)the Advances outstanding; and
(D) no Facility Termination Event, Unmatured Facility Termination Event, Unmatured Servicer Event of Default or Servicer Event of Default shall have occurred and be continuing; provided, notwithstanding the above, the Borrower shall have provided to the Administrative Agent may make (with a copy to the Collateral Agent, the Collateral Administrator and the Collateral Custodiani) not more than 45 days’ and at least 10 days’ prior written notice of its intent to effect an any Optional Sale of any Collateral Obligation that, in the Servicer’s reasonable judgment, has a significant risk of declining in credit quality and, with the lapse of time, becoming a Defaulted Collateral Obligation, if after giving effect to such Optional Sale, (a) no Facility Termination Event is continuing and (b) the aggregate Principal Balance of all such Collateral Obligations sold pursuant to this proviso in any twelve-month period does not exceed 25% of the Aggregate Eligible Collateral Obligation Amount in effect on the date of such sale; provided that if such Optional Sale Dateis made to satisfy any Collateral Quality Test or, if not satisfy, maintain or improve, then such Optional Sale shall not affect compliance with clause (b) above, (ii) the purchase price in cash deposited in the Collection Account with respect to the any Optional Sale of any Collateral Obligation if (x) the sale price is at least equal to or greater than the aggregate Outstanding Loan Principal Balance of such Collateral Obligation and (y) the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of from such Optional Sale shall be deposited into the Collection Account or (iii) any Optional Sale the trade date of which was prior to be disbursed in accordance with Section 2.04 hereofthe occurrence of a Facility Termination Event, Unmatured Facility Termination Event, Unmatured Servicer Event of Default or Servicer Event of Default, and the settlement date of which is scheduled to occur on a date following such Facility Termination Event, Unmatured Facility Termination Event, Unmatured Servicer Event of Default or Servicer Event of Default.
(ivii) no event has occurred at least one (1) Business Day prior to the date of any Optional Sale, the Borrower shall cause the Servicer to give the Facility Agent, each Agent the Collateral Custodian and is continuing, or would result from the Collateral Agent written notice of such Optional Sale, which constitutes notice shall identify the related Collateral subject to such optional sale and the expected proceeds from such Optional Sale and include (x) a pro forma Borrowing Base calculation demonstrating compliance with clauses (a)(i)(A), (B) and (C) and (y) to the extent requested by the Collateral Custodian, a certificate of the Servicer substantially in the form of Exhibit F-3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale; USActive 57084911.14 -82-
(iii) such Optional Sale shall be made by the Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) (A) the Principal Balance of all Equityholder Collateral Obligations (other than Warranty Collateral Obligations) sold or substituted pursuant to this Section 7.11 to the Equityholder shall not exceed 20% of the Equityholder Purchased Loan Balance measured as of the date of such sale or substitution, and (B) the Principal Balance of all Equityholder Collateral Obligations (other than Warranty Collateral Obligations) that are Defaulted Collateral Obligations sold or substituted pursuant to this Section 7.11 to the Equityholder shall not exceed 10% of the Equityholder Purchased Loan Balance measured as of the date of such sale or substitution;
(v) if such Optional Sale is to an Event Affiliate of Default the Borrower or the Servicer, the Facility Agent has given its prior written consent (x) if during the Revolving Period, such Optional Sale is for a purchase price less than the fair market value thereof (as determined by the Servicer) and no event has occurred and (y) if after the Revolving Period, such Optional Sale is continuing, or would result from for a purchase price less than par; and
(vi) on the date of such Optional Sale, which constitutes an Unmatured Event all proceeds from such Optional Sale will be sent directly into the Collection Account.
(a) In connection with any Optional Sale, following deposit of Default all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Borrower (or a Borrowing Base Deficiency; providedthe purchaser thereof from the Borrower) without recourse, that representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so long as all other conditions transferred shall be released from the Lien of this Agreement.
(b) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Facility Agent, the Collateral Agent, the Securities Intermediary, the Collateral Custodian, each Agent and each Lender in this clause connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Agent, on behalf of the Secured Parties, in the Collateral in connection with such Optional Sale), in accordance with and subject to the limitations of Section 17.4.
(c) and the Agreement are satisfied in fullIn connection with any Optional Sale, the Administrative AgentCollateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the portion of the Collateral subject to such Optional Sale to the Borrower, in recordable form if necessary, as the Borrower, or the Servicer on its sole and absolute discretion (upon the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith)behalf, may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salereasonably request.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Blackstone Private Credit Fund)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except as otherwise agreed immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied or, if not satisfied immediately prior to such Optional Sale, the extent of compliance will be improved;
(B) the Minimum Equity Test is satisfied;
(C) the Advances outstanding shall not exceed the Borrowing Base or the Maximum Availability; and
(D) the Borrower shall not have sold Collateral Obligations in Optional Sales to the Equityholder or an Affiliate thereof in excess of 20% of the amount resulting from difference between the aggregate Principal Balance of all Collateral Obligations acquired by the Administrative Agent pursuant Borrower (by way of sale or contribution) from the Equityholder prior to Section 2.07(j)(i)(A)such date minus the aggregate Principal Balance of all such Collateral Obligations distributed to or repurchased by the Equityholder or an Affiliate thereof prior to such date; provided that such sales of Defaulted Collateral Obligations to the Equityholder or an Affiliate thereof shall not exceed 10% of the amount resulting from difference between the aggregate Principal Balance of all Collateral Obligations acquired by the Borrower (by way of sale or contribution) from the Equityholder prior to such date minus the aggregate Principal Balance of all such Defaulted Collateral Obligations distributed to or repurchased by the Equityholder or an Affiliate thereof prior to such date;
(ii) immediately before and after giving effect to such Optional Sale, no Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default shall have occurred and be continuing; provided that if the Borrower has executed an agreement to sell such Loan Asset prior to the occurrence of any such event, the Borrower shall be allowed to settle such trade; provided, further, that if an Unmatured Event of Default shall have provided occurred and be continuing, the Borrower may make an Optional Sale if, (1) after giving effect to such Optional Sale, such event is cured (although, for the avoidance of doubt, such event shall be continuing as an Unmatured Event of Default for all purposes hereunder until the settlement date of such Optional Sale, but in no case longer than twelve (12) Business Days after the trade date), (2) such sale is to a non-affiliated third party and (3)(x) during the Revolving Period, such sale price is at least equal to the Administrative lesser of (I) the current applicable Discount Factor and (II) the Purchase Price and (y) after the Revolving Period, such sale price is at least equal to the Purchase Price (without taking into account the parenthetical in the definition thereof), unless the Facility Agent has given its prior written consent to waive any of the foregoing clauses;
(iii) at least one (1) Business Day prior to the date of any Optional Sale, the Servicer, on behalf of the Borrower, shall give the Facility Agent, the Collateral Custodian and the Collateral Agent written notice of such Optional Sale, which notice shall identify the related Collateral subject to such Optional Sale and the expected proceeds from such Optional Sale and include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating that the Borrowing Base is greater than or equal to the aggregate principal amount of all Advances outstanding and (y) a certificate of the Servicer substantially in the form of Exhibit F-3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iv) such Optional Sale shall be made by the Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a copy transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(v) if such Optional Sale is to an Affiliate of the Borrower or the Servicer, the Facility Agent has given its prior written consent; provided that such consent shall not be required if such sale price is at least equal to the greatest of (i) the current applicable Discount Factor, (ii) the Purchase Price and (iii) the fair market value (as determined based upon prices reported on one or more recognized, independent pricing services selected by the Servicer); and
(vi) on the date of such Optional Sale, all proceeds from such Optional Sale will be deposited directly into the Collection Account.
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Borrower without recourse, representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Facility Agent, the Collateral Agent, the Collateral Administrator Custodian, each Agent and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice Agent, on behalf of its intent to effect an Optional Sale on the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance portion of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of Collateral subject to such Optional Sale shall be deposited into to the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative AgentBorrower, in its sole and absolute discretion (upon recordable form if necessary, as the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), Borrower may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salereasonably request.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (BC Partners Lending Corp)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except as otherwise agreed by immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied (or, if any Collateral Quality Test is not satisfied, it is maintained or improved);
(B) the Administrative Agent Minimum Equity Condition is satisfied;
(C) (i) the Borrowing Base is greater than or equal to the Advances outstanding and (ii) the Foreign Currency Advance Amount shall not exceed the Foreign Currency Sublimit; and
(D) no Facility Termination Event, Unmatured Facility Termination Event, Unmatured Investment Manager Event of Default or Investment Manager Event of Default shall have occurred and be continuing; provided that, no more than once in any twelve-month period, if an Unmatured Facility Termination Event or Unmatured Investment Manager Event of Default is continuing, the Borrower may make an Optional Sale if, after giving effect to such Optional Sale, such event is cured (although, for the avoidance of doubt, such event shall be continuing for all purposes hereunder until the settlement date of such Optional Sale); provided, notwithstanding the above, that the Borrower may make (i) any Optional Sale of any Collateral Obligation that, in the Investment Manager’s reasonable judgment, has a significant risk of declining in credit quality and, with the lapse of time, becoming a Defaulted Collateral Obligation, if after giving effect to such Optional Sale, (a) no Facility Termination Event is continuing and (b) the aggregate Principal Balance of all such Collateral Obligations sold pursuant to Section 2.07(j)(i)(A)this proviso in any twelve-month period does not exceed 15% of the Aggregate Eligible Collateral Obligation Amount in effect on the date of such sale during such twelve month period or (ii) any Optional Sale of any Collateral Obligation if (x) the sale price is equal to or greater than the Principal Balance of such Collateral Obligation and (y) the proceeds from such Optional Sale are applied to reduce the Advances.
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Borrower shall have cause the Investment Manager to give the Facility Agent, each Agent, the Collateral Custodian and the Collateral Agent written notice of such Optional Sale, which notice shall identify the related Collateral subject to such Optional Sale and the expected proceeds from such Optional Sale and include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating compliance with clauses (a)(i)(A), (B) and (C) above and all other conditions set forth herein are satisfied and (y) a certificate of the Investment Manager substantially in the form of Exhibit F-3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iii) such Optional Sale shall be made by the Investment Manager, on behalf of the Borrower (A) in accordance with the Investment Management Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Investment Manager and such Optional Sale is not conducted on an arm’s length basis, the Facility Agent has given its prior written consent (which shall not be unreasonably withheld, conditioned or delayed); and
(v) on the date of such Optional Sale, all proceeds from such Optional Sale (x) will be deposited directly into the Collection Account and (y) with respect to any sold Collateral Obligation, will be in the same Eligible Currency as such Collateral Obligation.
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Administrative Borrower (or the purchaser thereof from the Borrower) without recourse, representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(with a copy c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Facility Agent, the Collateral Agent, the Collateral Administrator Custodian, each Agent and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice Agent, on behalf of its intent to effect an Optional Sale on the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the portion of the Collateral subject to such Optional Sale is at least equal to the aggregate Outstanding Loan Borrower, in recordable form if necessary, as the Borrower, or the Investment Manager on its behalf, may reasonably request.
(e) Notwithstanding the foregoing, the Principal Balance of all Collateral Obligations (other than Warranty Collateral Obligations released to the Loan Assets being Equityholder pursuant to a dividend by the Borrower) sold and purchased in connection therewith, and otherwise complies with pursuant to Section 7.10(a) to the pricing requirements set forth in clause (h) below), (iii) 100Equityholder or an Affiliate thereof or released to the Equityholder pursuant to a dividend by the Borrower shall not during the term of this Agreement exceed 20% of the net proceeds Net Purchased Loan Balance measured as of the date of such Optional Sale shall be deposited into the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, sale or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiencydividend; provided, that so long as the Principal Balance of all Defaulted Collateral Obligations (other conditions in this clause (c) and than Warranty Collateral Obligations released to the Agreement are satisfied in full, the Administrative Agent, in its sole and absolute discretion (upon the delivery of Equityholder pursuant to a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), may permit the offset (a “Permitted Offset”) dividend by the Servicer against Borrower) sold pursuant to Section 7.10(a) to the required purchase price Equityholder or an Affiliate thereof or released to be deposited in the Collection Account under clause (ii) or (iii) Equityholder pursuant to a dividend by the Borrower shall not during the term of this Section 2.07(c) (and, if applicable, clause (i) Agreement exceed 10% of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to Net Purchased Loan Balance measured as of the Loan Assets subject to an Optional Saledate of such sale or dividend.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Optional Sales. The Borrower may (a) Prior to the occurrence of an Unmatured Termination Event or a Termination Event, on any Optional Sale Date, the Borrower shall have the right to prepay all or a portion of the Advances Outstanding in connection with the a sale or other transfer of all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except as otherwise agreed by the Administrative Agent pursuant to Section 2.07(j)(i)(A), the The Borrower shall have provided to given the Administrative Agent (with a copy to the Collateral Agent, the Collateral Administrator and the Collateral CustodianTrustee) not more than 45 days’ and at least 10 days5 Business Days’ prior written notice of its intent to effect an Optional Sale on the Sale, and (other than an Optional Sale Date, which results in the termination in full of this Agreement pursuant to Section 2.5(a)) the Administrative Agent has consented in writing to such Optional Sale in its sole discretion unless such notice and consent are waived or such notice period is reduced by the Administrative Agent;
(ii) Any Optional Sale shall be in connection with either (A) a Term Securitization or (B) the purchase price repayment of all Aggregate Unpaids and termination in cash deposited whole of the Facility Amount pursuant to Section 2.5(a);
(iii) Unless an Optional Sale is to be effected on a Payment Date (in which case the Collection Account relevant calculations with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of such Optional Sale shall be deposited into reflected on the Collection Account applicable Servicing Report), the Servicer shall deliver to be disbursed the Administrative Agent a certificate and evidence to the reasonable satisfaction of the Administrative Agent (with a copy to the Trustee) (which evidence may consist solely of a certificate from the Servicer) that the Borrower shall have sufficient funds on the related Optional Sale Date to effect the contemplated Optional Sale in accordance with Section 2.04 hereofthis Agreement. In effecting an Optional Sale, and the Borrower may use the Proceeds of sales of the Collateral to repay all or a portion of the Aggregate Unpaids;
(iv) no event has occurred After giving effect to any Optional Sale (other than an Optional Sale that results in a termination in full of this Agreement pursuant to Section 2.5(a)), (a) the Availability shall be greater than or equal to $0 (unless otherwise agreed in writing by the Administrative Agent), (b) the representations and is continuingwarranties contained in Sections 4.1 and 4.2 hereof shall continue to be correct in all material respects, or would result from such Optional Sale, which constitutes except to the extent relating to an Event of Default earlier date and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and neither an Unmatured Termination Event nor a Termination Event shall have resulted. On the Agreement are satisfied in fullrelated Optional Sale Date, the Administrative Agent, each Lender, the Hedge Counterparties and the Trustee, as applicable, shall have received, as applicable, in its sole immediately available funds, an amount equal to the sum of (a) the portion of the Advances Outstanding to be prepaid that are attributable to the Collateral to be sold by the Borrower in connection with such Optional Sale plus (b) an amount equal to all unpaid Interest to the extent reasonably determined by the Administrative Agent and absolute discretion the Lenders to be attributable to that portion of the Advances Outstanding to be paid in connection with the Optional Sale plus (upon c) an aggregate amount equal to the delivery sum of all other amounts due and owing to the Administrative Agent, the Trustee, the Lenders, the Affected Parties and the Hedge Counterparties, as applicable, under this Agreement and the other Transaction Documents, to the extent accrued to such date (and, in the case of a Notice partial sale of Permitted Securitization the Collateral, to accrue thereafter to the next Payment Date) (including, without limitation, Breakage Costs, Hedge Breakage Costs and any other payments owing to the Hedge Counterparties in respect of the termination of any Hedge Transaction) in each case to the extent attributable to the Collateral to be sold by the Borrower in connection with such Optional Sale (or, in the form attached as Exhibit A setting forth case of a repayment in full and termination of the Facility Amount, all Aggregate Unpaids at such time); provided that the Administrative Agent shall have the right to determine whether the amount paid (or proposed offset to be paid) by the Borrower on the Optional Sale Date is sufficient to satisfy the requirements of clauses (iii) and demonstrating compliance with clause (iv) above and is sufficient to reduce the Advances Outstanding to the extent requested by the Borrower in connection with the Optional Sale;
(v) On or prior to each Optional Sale Date, the Borrower shall have delivered to the Administrative Agent a list specifying all Loans to be sold and assigned pursuant to such Optional Sale.
(b) In connection with any Optional Sale, the Borrower shall pay to the Administrative Agent, for the account of each Lender, any Prepayment Premium payable in connection therewith), may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Sale.
Appears in 1 contract
Sources: Loan and Servicing Agreement (NewStar Financial, Inc.)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent following terms and conditions:
(i) immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied (or, (1) if (x) any Collateral Quality Test (other than the Minimum Diversity Test) is not satisfied it is maintained or improved and (y) the Minimum Diversity Test is satisfied, or (2) the Facility Agent shall have consented to such sale, in its sole discretion);
(B) the Minimum Equity Test is satisfied;
(1) the Advances outstanding shall not exceed the Borrowing Base or the Maximum Availability and (2) the Foreign Currency Advance Amount shall not exceed the Foreign Currency Sublimit;
(D) no Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default shall have occurred and be continuing; and
(E) during the then-current calendar year, the Borrower will not have sold Collateral Obligations in Optional Sales with an aggregate Collateral Obligation Amount in excess of 20% of the Administrative Agenthighest Aggregate Eligible Collateral Obligation Amount as of any day during such calendar year; provided, notwithstanding clauses (A) through (C) above, so long as the Minimum Diversity Test is satisfied immediately after giving effect to such sale, the Borrower may make, solely during the Revolving Period, any Optional Sale of any Collateral Obligation if the sale price is equal to or greater than an amount equal to the Advance Rate multiplied by the greater of par and the related Purchase Price (expressed in Dollars) of such Collateral Obligation; provided, further, that clause (D) shall not apply to any Optional Sale of assets during an Unmatured Event of Default so long as (ix) except as otherwise agreed the sale price of such assets is equal to the fair market value thereof, (y) the proceeds of such sale are sufficient to cure such Unmatured Event of Default and (z) no more than three (3) such sales occur in any calendar year.
(ii) No later than the trade date of any Optional Sale, the Servicer, on behalf of the Borrower, shall give the Facility Agent, the Collateral Custodian and the Collateral Agent written notice (which may be via email to the Facility Agent, the Collateral Custodian and the Collateral Agent) of such Optional Sale, which notice shall identify the related Collateral subject to such Optional Sale and the expected proceeds from such Optional Sale and include (x) a written representation from the Servicer that, immediately after giving effect to such Optional Sale, the Minimum Equity Test is satisfied and (A) the Advances outstanding will not exceed (1) the Borrowing Base or (2) the Maximum Availability on such day and (B) the Foreign Currency Advance Amount will not exceed the Foreign Currency Sublimit and (y) a written calculation of the Diversity Score immediately after giving effect to such Optional Sale;
(iii) such Optional Sale shall be made by the Administrative Agent pursuant Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to Section 2.07(j)(i)(A)an Affiliate of the Borrower or the Servicer, the Borrower Facility Agent has given its prior written consent; and
(v) on the date of such Optional Sale, all proceeds from such Optional Sale (which proceeds shall have provided be in the same Eligible Currency as the related Collateral Obligation) will be deposited directly into the Collection Account.
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Administrative Borrower without recourse, representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(with a copy c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Facility Agent, the Collateral Agent, the Collateral Administrator Custodian, each Agent and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice Agent, on behalf of its intent to effect an Optional Sale on the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance portion of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of Collateral subject to such Optional Sale shall be deposited into to the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative AgentBorrower, in its sole and absolute discretion (upon recordable form if necessary, as the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), Borrower may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salereasonably request.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Oaktree Strategic Credit Fund)
Optional Sales. (a) The Borrower may on shall have the right to sell (or direct any Optional Sale Date, prepay all or portion of the Advances Outstanding in connection with the sale or other transfer of Securitization Subsidiary to sell) all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), subject to the following terms and conditions:
(i) immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied or, if not satisfied, maintained or improved (unless waived by the Facility Agent in connection with a Permitted Securitization);
(B) the Minimum Equity Condition is satisfied;
(C) (1) the Borrowing Base is greater than or equal to the Advances Outstanding and (2) the Foreign Currency Advance Amount shall not exceed the Foreign Currency Sublimit multiplied by 102.5% (solely with respect to any Optional Sale of Collateral Obligations denominated in a currency other than Dollars); and
(D) to the knowledge of a Responsible Officer of the Borrower and the Servicer, no Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default shall have occurred and be continuing; provided that, (i) an Event of Default or Unmatured Event of Default may occur and be continuing if such Optional Sale (x) relates to the sale of a Specified Multiple Recurring Revenue Loan as described in clause (ii) of the definition thereof or (y) cures any Specified Borrowing Base Breach or (ii) an Unmatured Event of Default, including any Borrowing Base Deficiency that is subject to cure pursuant to Section 2.10, may occur and be continuing if such Optional Sale entirely cures such Unmatured Event of Default; provided further that, notwithstanding the foregoing or anything herein to the contrary, the Borrower may make any Optional Sale, the trade date for which occurred prior to the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default (and which Optional Sale was otherwise permitted hereunder as of such trade date), and the settlement date for which is scheduled to occur on a date following such Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default;
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Servicer, on behalf of the Borrower, shall give the Facility Agent, the Collateral Custodian and the Collateral Agent written notice of such Optional Sale, which notice shall identify the related Collateral subject to such Optional Sale and the expected proceeds from such Optional Sale and include an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating that the Borrowing Base is greater than or equal to the Advances Outstanding;
(iii) such Optional Sale shall be made by the Servicer, on behalf of the applicable Loan Party (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the applicable Loan Party makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Servicer after the end of the Revolving Period, (x) the proceeds received for each Collateral Obligation sold in connection therewith shall be no less than the greater of (A) the fair market value and (B) the Collateral Obligation Amount (without giving effect to the proviso to the definition thereof) of such Collateral Obligation or (y) otherwise, the Facility Agent has given its prior written consent;
(v) in no event shall the sum of the aggregate Principal Balance of Collateral Obligations sold pursuant to an Optional Sale (other than sales to any Existing ▇▇▇▇▇ BDC CLO pursuant to Section 9.36) exceed 25% of the highest aggregate Principal Balance of all Collateral Obligations at any time during the preceding 12 calendar months; provided that any Collateral Obligations transferred pursuant to an Optional Sale to the Servicer or an Affiliate of the Servicer with respect to a new issue collateralized loan obligation managed by the Servicer or an Affiliate of the Servicer and underwritten, arranged and/or structured by the Facility Agent or any Affiliate of the Facility Agent shall be excluded from the foregoing limit; provided further that, any Optional Sale of a Specified Multiple of Recurring Revenue Loan or Permitted Collateral Obligation shall be excluded from the foregoing limit; and
(vi) on the date of such Optional Sale, all proceeds from such Optional Sale will be deposited directly into the Collection Account.
(b) In connection with any Optional Sale, simultaneously with the deposit of all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Borrower without recourse, representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(c) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the portion of the Collateral subject to such Optional Sale to the Borrower, in recordable form if necessary, as the Borrower may reasonably request.
(d) The purchase price for any Collateral Obligation sold by any Loan Party to any special purpose vehicle wholly or partly owned by the Equityholder, the Servicer or its Affiliates may be payable (at the discretion of the Servicer) as follows: (i)(A) during the Revolving Period, the carrying value of such Collateral Obligation and (B) following the Revolving Period, an amount equal to the greater of (x) fair market value and (y) the Discount Factor and (ii) during the Revolving Period and other than in connection with purchases relating to a Permitted Securitization that has priced but has not yet closed, so long as no Default or Event of Default has occurred and is continuing, the remainder of the purchase price not paid in cash will be deemed to have been received by the Borrower and the Borrower shall be deemed to simultaneously dividend such portion of the Collateral Obligation to the Equityholder.
(e) If a Permitted Securitization has priced and it is intended that the portfolio for such Permitted Securitization include certain Collateral Obligations (or portions thereof) in the Collateral, such Collateral Obligations shall not be subject to any sale or disposition restriction pursuant to this Section 9.34, even if an Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default has occurred prior to the date such Permitted Securitization has priced; it being understood that the proceeds of such Permitted Securitization shall be used to pay down the Advances Outstanding and other Obligations in full pursuant to Section 8.3 if an Event of Default has occurred and is continuing at the time such Collateral Obligations are sold in connection with such Permitted Securitization.
(f) Notwithstanding anything herein to the contrary, a Loan Party (or the Servicer on behalf of the Borrower or any Securitization Subsidiary) may sell in the manner directed by the Servicer any Permitted Collateral Obligation, equity security, Collateral Obligation (or portion thereof) constituting the Excess Concentration Amount or any asset that does not satisfy the definition of “Eligible Collateral Obligation” at any time during the Revolving Period and without restriction (including without regard to any other conditions hereunder applicable to Optional Sales and without consent of the Administrative Facility Agent; ) so long as (i) except as otherwise agreed by the Administrative Agent pursuant to Section 2.07(j)(i)(A), the Borrower shall have provided to the Administrative Agent (with a copy to the Collateral Agent, the Collateral Administrator no Event of Default has occurred is and the Collateral Custodian) not more than 45 days’ is continuing and at least 10 days’ prior written notice of its intent to effect an Optional Sale on the Optional Sale Date, (ii) no Responsible Officer of any Loan Party, the purchase price in cash deposited in Servicer or the Collection Account with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance Equityholder has knowledge that an Unmatured Event of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of such Optional Sale shall be deposited into the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event Default has occurred and is continuing.
(g) Notwithstanding anything herein to the contrary, a Loan Party (or would result from such Optional Sale, which constitutes an Event the Servicer on behalf of Default and no event has occurred and is continuing, the Borrower or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (cany Securitization Subsidiary) and the Agreement are satisfied in full, the Administrative Agent, in its sole and absolute discretion (upon the delivery of a Notice of Permitted Securitization may sell in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), may permit the offset (a “Permitted Offset”) manner directed by the Servicer against the required purchase price any Collateral Obligation without restriction (including without regard to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement any other conditions hereunder applicable to Optional Sales and without consent of the Loan Assets subject to an Optional SaleFacility Agent) in connection with the payment in full of the Obligations.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Golub Capital BDC 4, Inc.)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), subject to the following terms and conditions:
(i) immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied (or, if any Collateral Quality Test is not satisfied, it is improved);
(B) the Minimum Equity Condition is satisfied;
(C) the Borrowing Base is greater than or equal to the Advances outstanding; and
(D) no Facility Termination Event, Unmatured Facility Termination Event, Unmatured Investment Manager Event of Default or Investment Manager Event of Default shall have occurred and be continuing; provided that, once in any twelve-month period, if an Unmatured Facility Termination Event or Unmatured Investment Manager Event of Default is continuing, the Borrower may make an Optional Sale if, after giving effect to such Optional Sale, such event is cured (although, for the avoidance of doubt, such event shall be continuing for all purposes hereunder until the settlement date of such Optional Sale); provided, notwithstanding the above, that the Borrower may make (i) any Optional Sale of any Collateral Obligation that, in the Collateral Manager’s reasonable judgment, has a significant risk of declining in credit quality and, with the lapse of time, becoming a Defaulted Collateral Obligation, if after giving effect to such Optional Sale, (a) no Facility Termination Event is continuing and (b) the aggregate Principal Balance of all such Collateral Obligations sold pursuant to this proviso in any twelve-month period does not exceed 15% of the Aggregate Eligible Collateral Obligation Amount in effect on the date of such sale, (ii) any Optional Sale of any Collateral Obligation if (x) the sale price is equal to or greater than the Principal Balance of such Collateral Obligation and (y) the proceeds from such Optional Sale are applied to reduce the Advances or (iii) any Optional Sale required as a result of the Required Sale Date.
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Borrower shall cause the Investment Manager to give the Administrative Agent, the Collateral Custodian and the Collateral Agent written notice of such Optional Sale, which notice shall identify the related Collateral subject to such optional sale and the expected proceeds from such Optional Sale and include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating compliance with clauses (A), (B) and (C) above and all other conditions set forth herein are satisfied and (y) a certificate of the Investment Manager substantially in the form of Exhibit F-3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iii) such Optional Sale shall be made by the Investment Manager, on behalf of the Borrower (A) in accordance with the Investment Management Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Investment Manager, the Administrative Agent has given its prior written consent (which shall not be unreasonably withheld, conditioned or delayed); and
(v) on the date of such Optional Sale, all proceeds from such Optional Sale will be sent directly into the Collection Account.
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Borrower (or the purchaser thereof from the Borrower) without recourse, representation or warranty all of the consent right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Administrative Agent; so long as (i) except as otherwise agreed by the Administrative Agent pursuant to Section 2.07(j)(i)(A), the Borrower shall have provided to the Administrative Agent (with a copy to the Collateral Agent, the Collateral Administrator Custodian, each Agent and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice Agent, on behalf of its intent to effect an Optional Sale on the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the portion of the Collateral subject to such Optional Sale is at least equal to the aggregate Outstanding Loan Borrower, in recordable form if necessary, as the Borrower, or the Investment Manager on its behalf, may reasonably request.
(e) Notwithstanding the foregoing, the Principal Balance of all Collateral Obligations (other than Warranty Collateral Obligations released to the Loan Assets being Equityholder pursuant to a dividend by the Borrower or Collateral Obligations sold and purchased in connection therewith, and otherwise complies with to the pricing requirements set forth in clause (hEquityholder as a result of the Required Sale Date) below), (iiisold pursuant to Section 7.10(a) 100to the Equityholder or an Affiliate thereof or released to the Equityholder pursuant to a dividend by the Borrower shall not during the term of this Agreement exceed 20% of the net proceeds Net Purchased Loan Balance measured as of the date of such Optional Sale shall be deposited into the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, sale or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiencydividend; provided, that so long as the Principal Balance of all Defaulted Collateral Obligations (other conditions in this clause (c) and than Warranty Collateral Obligations released to the Agreement are satisfied in full, the Administrative Agent, in its sole and absolute discretion (upon the delivery of Equityholder pursuant to a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), may permit the offset (a “Permitted Offset”) dividend by the Servicer against Borrower or Collateral Obligations sold to the required purchase price Equityholder as a result of the Required Sale Date) sold pursuant to be deposited in Section 7.10(a) to the Collection Account under clause (ii) Equityholder or (iii) an Affiliate thereof or released to the Equityholder pursuant to a dividend by the Borrower shall not during the term of this Section 2.07(c) (and, if applicable, clause (i) Agreement exceed 10% of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to Net Purchased Loan Balance measured as of the Loan Assets subject to an Optional Saledate of such sale or dividend.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS Investment Corp III)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except as otherwise agreed by immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied (or, if any Collateral Quality Test is not satisfied, it is maintained or improved);
(B) the Administrative Agent Minimum Equity Condition is satisfied;
(C) (i) the Borrowing Base is greater than or equal to the Advances outstanding and (ii) the Foreign Currency Advance Amount shall not exceed the Foreign Currency Sublimit; and
(D) no Facility Termination Event, Unmatured Facility Termination Event, Unmatured Investment Manager Event of Default or Investment Manager Event of Default shall have occurred and be continuing; provided that, no more than once in any twelve-month period, if an Unmatured Facility Termination Event or Unmatured Investment Manager Event of Default is continuing, the Borrower may make an Optional Sale if, after giving effect to such Optional Sale, such event is cured (although, for the avoidance of doubt, such event shall be continuing for all purposes hereunder until the settlement date of such Optional Sale); provided, notwithstanding the above, that the Borrower may make (i) any Optional Sale of any Collateral Obligation that, in the Investment Manager’s reasonable judgment, has a significant risk of declining in credit quality and, with the lapse of time, becoming a Defaulted Collateral Obligation, if after giving effect to such Optional Sale, (a) no Facility Termination Event is continuing and (b) the aggregate Principal Balance of all such Collateral Obligations sold pursuant to Section 2.07(j)(i)(A)this proviso in any twelve-month period does not exceed 15% of the Aggregate Eligible Collateral Obligation Amount in effect on the date of such sale during such twelve month period or (ii) any Optional Sale of any Collateral Obligation if (x) the sale price is equal to or greater than the Principal Balance of such Collateral Obligation and (y) the proceeds from such Optional Sale are applied to reduce the Advances. USActive 31637433.35 -78-
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Borrower shall have cause the Investment Manager to give the Facility Agent, each Agent, the Collateral Custodian and the Collateral Agent written notice of such Optional Sale, which notice shall identify the related Collateral subject to such Optional Sale and the expected proceeds from such Optional Sale and include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating compliance with clauses (a)(i)(A), (B) and (C) above and all other conditions set forth herein are satisfied and (y) a certificate of the Investment Manager substantially in the form of Exhibit F-3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iii) such Optional Sale shall be made by the Investment Manager, on behalf of the Borrower (A) in accordance with the Investment Management Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Investment Manager and such Optional Sale is not conducted on an arm’s length basis, the Facility Agent has given its prior written consent (which shall not be unreasonably withheld, conditioned or delayed); and
(v) on the date of such Optional Sale, all proceeds from such Optional Sale (x) will be deposited directly into the Collection Account and (y) with respect to any sold Collateral Obligation, will be in the same Eligible Currency as such Collateral Obligation.
(a) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Administrative Borrower (or the purchaser thereof from the Borrower) without recourse, representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(with a copy b) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Facility Agent, the Collateral Agent, the Collateral Administrator Custodian, each Agent and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice Agent, on behalf of its intent to effect an Optional Sale on the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale).
(c) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the portion of the Collateral subject to such Optional Sale is at least equal to the aggregate Outstanding Loan Borrower, in recordable form if necessary, as the Borrower, or the Investment Manager on its behalf, may reasonably request. USActive 31637433.35 -79-
(d) Notwithstanding the foregoing, the Principal Balance of all Collateral Obligations (other than Warranty Collateral Obligations released to the Loan Assets being Equityholder pursuant to a dividend by the Borrower) sold and purchased in connection therewith, and otherwise complies with pursuant to Section 7.10(a) to the pricing requirements set forth in clause (h) below), (iii) 100Equityholder or an Affiliate thereof or released to the Equityholder pursuant to a dividend by the Borrower shall not during the term of this Agreement exceed 20% of the net proceeds Net Purchased Loan Balance measured as of the date of such Optional Sale shall be deposited into the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, sale or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiencydividend; provided, that so long as the Principal Balance of all Defaulted Collateral Obligations (other conditions in this clause (c) and than Warranty Collateral Obligations released to the Agreement are satisfied in full, the Administrative Agent, in its sole and absolute discretion (upon the delivery of Equityholder pursuant to a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), may permit the offset (a “Permitted Offset”) dividend by the Servicer against Borrower) sold pursuant to Section 7.10(a) to the required purchase price Equityholder or an Affiliate thereof or released to be deposited in the Collection Account under clause (ii) or (iii) Equityholder pursuant to a dividend by the Borrower shall not during the term of this Section 2.07(c) (and, if applicable, clause (i) Agreement exceed 10% of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to Net Purchased Loan Balance measured as of the Loan Assets subject to an Optional Saledate of such sale or dividend.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent following terms and conditions:
(i) immediately after giving effect to such Optional Sale:
(A) except as set forth in clause (E)(6) below, each Collateral Quality Test is satisfied, or if not satisfied, the degree of compliance with each Collateral Quality Test is maintained or improved;
(B) the Minimum Equity Condition is satisfied;
(C) the Advances outstanding shall not exceed the lower of (x) the Borrowing Base or (y) the Maximum Availability;
(1) no Facility Termination Event, Unmatured Facility Termination Event, Unmatured Services Provider Event of Default or Services Provider Event of Default shall have occurred and be continuing (provided, that, if an Unmatured Facility Termination Event is continuing, the Borrower may make an Optional Sale if, after giving effect to such Optional Sale, such event is cured (although, for the avoidance of doubt, such event shall be continuing for all purposes hereunder until the settlement date of such Optional Sale)) and (2) no Unmatured Equityholder Credit Event shall have occurred;
(E) the Aggregate Eligible Collateral Obligation Amount of all Collateral Obligations sold by the Borrower during the then-current calendar year does not exceed 30% of the Administrative Agenthighest Aggregate Eligible Collateral Obligation Amount on any day of such calendar year; provided, that, this clause (E) shall not apply to:
(1) any Optional Sale made to cure one or more Collateral Quality Tests (so long as, immediately following such Optional Sale, (I) each Collateral Quality Test (other than the Minimum Diversity Test) is satisfied, or if not satisfied, the degree of compliance with each such test or condition is maintained or improved, (II) the Minimum Equity Condition is satisfied, (III) the Advances outstanding do not exceed either the Borrowing Base or the Maximum Availability and (IV) the Minimum Diversity Test is satisfied);
(2) any Optional Sale made to reduce the Advances outstanding to be less than the Borrowing Base or the Maximum Availability or the Minimum Equity Condition (so long as, immediately following such Optional Sale, (I) the Minimum Equity Condition is satisfied, (II) the Advances outstanding do not exceed either the Borrowing Base or the Maximum Availability and (III) the Minimum Diversity Test is satisfied);
(3) any Optional Sale of any Collateral Obligation with a Discount Factor less than par, so long as (iI) except during the Revolving Period, such Collateral Obligation is sold at a price (expressed as otherwise agreed a percentage of par) not less than its Discount Factor and (II) after the Revolving Period, such Collateral Obligation is either (x) sold at a price that is not less than the outstanding principal amount of such Collateral Obligation or (y) sold at a price that is less than the outstanding principal amount of such Collateral Obligation and the Borrower receives a contribution to capital from the Equityholder at least equal to the difference between such outstanding principal amount and such price;
(4) any Optional Sale of a Collateral Obligation that has a Collateral Obligation Amount of zero;
(5) any Optional Sale of any portion of a Collateral Obligation constituting an Excess Concentration; and
(6) any Optional Sale to effect a Permitted Securitization if, unless waived by the Administrative Facility Agent pursuant in its sole discretion, (1) such sale is effected in accordance with clause (iv) below, (2) immediately following such Optional Sale, each Collateral Quality Test (other than the Minimum Diversity Test) is satisfied, or if not satisfied, the degree of compliance with each Collateral Quality Test is maintained or improved and (3) the Minimum Diversity Test is satisfied; and
(F) as of the date the Borrower commits to Section 2.07(j)(i)(Asuch Optional Sale, the aggregate Principal Balance of all Defaulted Collateral Obligations sold by the Borrower to the Equityholder or its Affiliates shall not exceed 15% of the highest aggregate Principal Balance of all Eligible Collateral Obligations on any day during the twelve-month period preceding such date (or such higher amount approved by the Facility Agent in its sole discretion).
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Services Provider shall give the Facility Agent, each Agent, the Collateral Custodian and the Collateral Agent written notice of such Optional Sale, which notice shall identify the related Collateral subject to such optional sale and the expected proceeds from such Optional Sale and include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating compliance with clauses (a)(i)(A), (B) and (C) above and all other conditions set forth herein are satisfied and (y) a certificate of the Services Provider substantially in the form of Exhibit F-3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iii) such Optional Sale shall be made by the Services Provider, on behalf of the Borrower shall have (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Services Provider, such Optional Sale is made on an arms-length basis at a price at least equal to the Administrative fair market value of the Collateral Obligation being sold and the Facility Agent has given its prior written consent (which shall not be unreasonably withheld, conditioned or delayed) unless such Optional Sale is made at a price at least equal to (x) during the Revolving Period, the Collateral Obligation Amount of the Collateral Obligation being sold or (y) after the end of the Revolving Period, the outstanding principal amount of such Collateral Obligation (or at a price that is less than the outstanding principal amount of such Collateral Obligation but not less than the fair market value of such Collateral Obligation and the Borrower receives a contribution to capital from the Equityholder at least equal to the difference between such outstanding principal amount and such price); and
(v) on the date of such Optional Sale, all proceeds from such Optional Sale will be deposited directly into the Collection Account.
(b) In connection with a copy any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Borrower (or the purchaser thereof from the Borrower) without recourse, representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Facility Agent, the Collateral Agent, the Collateral Administrator Custodian, each Agent and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Agent, on behalf of the Secured Parties, in the Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the portion of the Collateral subject to such Optional Sale to the Borrower, in recordable form if necessary, as the Borrower, or the Services Provider on its behalf, may reasonably request.
(e) The Facility Agent, the Trustee and the Collateral CustodianAgent hereby acknowledge and agree that (i) not more than 45 days’ and at least 10 days’ prior written notice the Borrower may effect, in accordance with the terms of Section 7.11(a) (unless waived by the Facility Agent in its intent to effect sole discretion), an Optional Sale to effect a Permitted Securitization on or about the Optional Sale DateFirst Amendment Effective Date of certain Collateral Obligations to be identified to the Facility Agent in connection therewith, (ii) upon the purchase price in cash deposited in the Collection Account with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance deposit of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of such Optional Sale shall be deposited into the Collection Account or the direct application of such amount to pay down the outstanding Advances by the Facility Agent, any and all security interests and other Liens of every type and nature at any time granted to or held by the Collateral Agent for the benefit of the Secured Parties in and to any Collateral comprising (including, without limitation, any documents relating to) the such sold Collateral Obligations shall automatically be disbursed terminated and released without further action on the part of any party hereto, (iii) the Facility Agent shall receive a Prepayment Notice specifying a prepayment of Advances outstanding relating to such sold Collateral Obligations in accordance with Section 2.04 hereof, the amount of the proceeds of such Optional Sale and (iv) no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative Facility Agent, in its sole Trustee and absolute discretion (upon Collateral Agent shall cooperate with the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset Borrower to execute and demonstrating compliance with clause (iv) above in connection therewith)deliver any agreements, documents, and other instruments that may permit the offset (a “Permitted Offset”) be reasonably requested by the Servicer against Borrower to evidence the required purchase price to be deposited termination and release of the security interests and other Liens granted in the Collection Account under clause (ii) or (iii) respect of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salesuch sold Collateral Obligations.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Owl Rock Capital Corp)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except as otherwise agreed by immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied (or, if any Collateral Quality Test is not satisfied, it is improved);
(B) the Administrative Agent pursuant Minimum Equity Test is satisfied;
(C) the Borrowing Base is greater than or equal to Section 2.07(j)(i)(A)the Advances outstanding; and
(D) no Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default shall have occurred and be continuing; provided, that, if an Unmatured Event of Default or Unmatured Servicer Default is continuing, the Borrower may make an Optional Sale if, after giving effect to such Optional Sale, such event is cured (although, for the avoidance of doubt, such event shall have provided be continuing for all purposes hereunder until the settlement date of such Optional Sale); provided, that notwithstanding the above, the Borrower may at any time make any Optional Sale of any Collateral Obligation that, in the Servicer’s reasonable judgment, has a significant risk of declining in credit quality and, with the lapse of time, becoming a Defaulted Collateral Obligation, if after giving effect to such Optional Sale both (x) no Unmatured Event of Default or Event of Default is continuing and (y) the aggregate Principal Balance of Collateral Obligations sold pursuant to this proviso does not exceed, during any twelve-month period, 10% of the highest aggregate Principal Balance during such twelve-month period;
(ii) at least one (1) Business Day prior to the Administrative Agent (with a copy to date of any Optional Sale, the Servicer, on behalf of the Borrower, shall give the Facility Agent, the Collateral AgentCustodian, the Collateral Administrator and the Collateral CustodianAgent (for delivery to each Agent via the Collateral Agent’s Website) not more than 45 days’ and at least 10 days’ prior written notice of its intent such Optional Sale, which notice shall identify the related Collateral subject to effect an such Optional Sale on and the expected proceeds from such Optional Sale Dateand include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, (ii) demonstrating that the purchase price in cash deposited in the Collection Account with respect to the Optional Sale Borrowing Base is at least greater than or equal to the aggregate Outstanding Loan Balance Advances outstanding and (y) a certificate of the Loan Assets being sold and purchased Servicer substantially in the form of Exhibit F-3 requesting the release of the related Collateral Obligation File in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), such Optional Sale;
(iii) 100% of the net proceeds of such Optional Sale shall be deposited into made by the Collection Account to be disbursed Servicer, on behalf of the Borrower (A) in accordance with Section 2.04 hereofthe Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) no event if such Optional Sale is to an Affiliate of the Borrower or the Servicer, unless the Facility Agent has occurred and rejected a request to approve a Material Modification specified under clause (f) of the definition thereof with respect to such Collateral Obligation, the Facility Agent has given its prior written consent (which consent, if such Optional Sale is continuingat par, shall not be unreasonably withheld, conditioned or would result from delayed); and
(v) on the date of such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result all proceeds from such Optional Sale will be deposited directly into the Pass-Through Collection Account.
(b) In connection with any Optional Sale, which constitutes an Unmatured Event following deposit of Default all proceeds from such Optional Sale into the Pass-Through Collection Account, the Collateral Agent shall be deemed to release and transfer to the Borrower without recourse, representation or a Borrowing Base Deficiency; providedwarranty all of the right, that title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so long as all other conditions in transferred shall be released from the Lien of this clause Agreement.
(c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Agreement are satisfied in fullFacility Agent, the Administrative Collateral Agent, the Collateral Administrator, the Collateral Custodian, each Agent and each Lender in its sole and absolute discretion connection with any Optional Sale (upon including, but not limited to, expenses incurred in connection with the delivery release of a Notice the Lien of Permitted Securitization the Collateral Agent, on behalf of the Secured Parties, in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above Collateral in connection therewithwith such Optional Sale).
(d) In connection with any Optional Sale, may permit the offset (a “Permitted Offset”) by Collateral Agent shall, at the Servicer against sole expense of the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) Borrower, execute such instruments of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable release with respect to the Loan Assets portion of the Collateral subject to an such Optional SaleSale to the Borrower, in recordable form if necessary, as the Borrower may reasonably request and provide.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Stellus Private Credit BDC)
Optional Sales. The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except as otherwise agreed by immediately after giving effect to such Optional Sale (together with such other Optional Sales and other actions to be effected in connection with any cure of a Borrowing Base deficiency in accordance with Section 8.1(e)):
(A) each Collateral Quality Test is satisfied (or, if any Collateral Quality Test is not satisfied, it is improved);
(B) the Administrative Agent pursuant Minimum Equity Condition is satisfied;
(C) the Borrowing Base is greater than or equal to Section 2.07(j)(i)(A)the Advances outstanding; and
(D) no Facility Termination Event, Unmatured Facility Termination Event, Unmatured Servicer Event of Default or Servicer Event of Default shall have occurred and be continuing; provided that, no more than once in any twelve-month period, if an Unmatured Facility Termination Event or Unmatured Servicer Event of Default is continuing, the Borrower shall have provided to the Administrative Agent (with a copy to the Collateral Agent, the Collateral Administrator and the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice of its intent to effect may make an Optional Sale if, after giving effect to such Optional Sale, such event is cured (although, for the avoidance of doubt, such event shall be continuing for all purposes hereunder until the settlement date of such Optional Sale); provided, notwithstanding the above, that the Borrower may make (i) any Optional Sale of any Collateral Obligation that, in the Servicer’s reasonable judgment, has a significant risk of declining in credit quality and, with the lapse of time, becoming a Defaulted Collateral Obligation, if after giving effect to such Optional Sale, (a) no Facility Termination Event is continuing and (b) the aggregate Principal Balance of all such Collateral Obligations sold pursuant to this proviso in any twelve-month period does not exceed 2025% of the Aggregate Eligible Collateral Obligation Amount in effect on the date of such sale; provided that if such Optional Sale Dateis made to satisfy any Collateral Quality Test or, if not satisfy, maintain or improve, then such Optional Sale shall not affect compliance with clause (b) above; or, (ii) the purchase price in cash deposited in the Collection Account with respect to the any Optional Sale of any Collateral Obligation if (x) the sale price is at least equal to or greater than the aggregate Outstanding Loan Principal Balance of such Collateral Obligation and (y) the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of from such Optional Sale shall are applied to reduce the Advances.shall be deposited into the Collection Account or (iii) any Optional Sale the trade date of which was prior to be disbursed in accordance with Section 2.04 hereofthe occurrence of a Facility Termination Event, Unmatured Facility Termination Event, Unmatured Servicer Event of Default or Servicer Event of Default, and the settlement date of which is scheduled to occur on a date following such Facility Termination Event, Unmatured Facility Termination Event, Unmatured Servicer Event of Default or Servicer Event of Default.
(ivii) no event has occurred at least one (1) Business Day prior to the date of any Optional Sale, the Borrower shall cause the Servicer to give the Facility Agent, each Agent the Collateral Custodian and is continuing, or would result from the Collateral Agent written notice of such Optional Sale, which constitutes an Event of Default notice shall identify the related Collateral subject to such optional sale and no event has occurred and is continuing, or would result the expected proceeds from such Optional Sale and include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, which constitutes an Unmatured Event of Default or ,a pro forma Borrowing Base Deficiency; providedcalculation demonstrating compliance with clauses (a)(i)(A), that so long as (B) and (C) above and all other conditions in this clause (c) and the Agreement set forth herein are satisfied in fulland (y)and (y) to the extent requested by the Collateral Custodian, a certificate of the Administrative Agent, in its sole and absolute discretion (upon the delivery of a Notice of Permitted Securitization Servicer substantially in the form attached as of Exhibit A setting forth F-3 requesting the proposed offset release of the related Collateral Obligation File in connection with such Optional Sale; USActive 31637433.4 -87-
(iii) such Optional Sale shall be made by the Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and demonstrating compliance (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with clause the sale of assets of such type);
(iv) above in connection therewith), may permit (A) the offset Principal Balance of all Equityholder Collateral Obligations (a “Permitted Offset”other than Warranty Collateral Obligations) by the Servicer against the required purchase price sold or substituted pursuant to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable 7.11 to the Equityholder shall not exceed 20% of the Equityholder Purchased Loan Assets subject Balance measured as of the date of such sale or substitution, and (B) the Principal Balance of all Equityholder Collateral Obligations (other than Warranty Collateral Obligations) that are Defaulted Collateral Obligations sold or substituted pursuant to an Optional Sale.this Section 7.11 to the Equityholder shall not exceed 10% of the Equityholder Purchased Loan Balance measured as of the date of such sale or substitution;
Appears in 1 contract
Sources: Omnibus Amendment to Transaction Documents (Blackstone Private Credit Fund)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except as otherwise agreed by immediately after giving effect to such Optional Sale (together with such other Optional Sales and other actions to be effected in connection with any cure of a Borrowing Base Deficiency in accordance with Section 8.1(e)):
(A) each Collateral Quality Test is satisfied (or, if not satisfied, is maintained or improved);
(B) reserved;
(C) the Administrative Borrowing Base is greater than or equal to the Loans outstanding (or, if the foregoing condition is not satisfied, the Borrowing Base is maintained or improved and the Agent pursuant to Section 2.07(j)(i)(Ahas given its prior written consent (which shall not be unreasonably withheld, conditioned or delayed)); and
(D) no Event of Default, Unmatured Event of Default, Unmatured Servicer Event of Default or Servicer Event of Default shall have occurred and be continuing; provided, that, notwithstanding the above, the Borrower shall have provided may make (i) any Optional Sale of any Collateral Obligation that, in the Servicer’s reasonable judgment, has a significant risk of declining in credit quality and, with the lapse of time, becoming a Defaulted Collateral Obligation, if after giving effect to such Optional Sale, (a) no Event of Default is continuing and (b) the aggregate Principal Balance of all such Collateral Obligations sold pursuant to this proviso in any twelve-month period does not exceed 20% of the Aggregate Eligible Collateral Obligation Amount in effect on the date of such sale, (ii) any Optional Sale of any Collateral Obligation if the sale price is equal to or greater than the Principal Balance of such Collateral Obligation or (iii) any Optional Sale the trade date of which was prior to the Administrative occurrence of an Event of Default, Unmatured Event of Default, Unmatured Servicer Event of Default or Servicer Event of Default, and the settlement date of which is scheduled to occur on a date following such Event of Default, Unmatured Event of Default, Unmatured Servicer Event of Default or Servicer Event of Default.
(ii) to the extent requested by the Collateral Custodian in connection with any Optional Sale, the Servicer shall give the Collateral Custodian a certificate of the Servicer substantially in the form of Exhibit F-3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iii) such Optional Sale shall be made by the Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) reserved;
(v) (A) the Principal Balance of all Equityholder Collateral Obligations (other than Warranty Collateral Obligations) sold or substituted pursuant to this Section 7.10 to the Equityholder or an Affiliate thereof shall not exceed 20% of the Equityholder Purchased Loan Balance measured as of the date of such sale or substitution, and (B) the Principal Balance of all Equityholder Collateral Obligations (other than Warranty Collateral Obligations) that are Defaulted Collateral Obligations sold or substituted pursuant to this Section 7.10 to the Equityholder or an Affiliate thereof shall not exceed 10% of the Equityholder Purchased Loan Balance measured as of the date of such sale or substitution; and
(vi) on the date of such Optional Sale, all proceeds from such Optional Sale, net of reasonable expenses incurred in connection with such Optional Sale (x) will be deposited directly into the Collection Account and (y) with respect to any sold Collateral Obligation, will be in the same Eligible Currency as such Collateral Obligation.
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Borrower (with a copy or the purchaser thereof from the Borrower) without recourse, representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Agent, the Collateral Agent, the Collateral Administrator and Administrator, the Collateral Custodian) not more than 45 days’ , each Lender Agent and at least 10 days’ prior written notice of its intent to effect an each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Agent, on behalf of the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale), in accordance with and subject to the limitations of Section 17.4.
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release prepared by the Servicer with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance portion of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of Collateral subject to such Optional Sale shall be deposited into to the Collection Account to be disbursed Borrower, in accordance with Section 2.04 hereofrecordable form if necessary, and (iv) no event has occurred and is continuingas the Borrower, or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative Agent, in Servicer on its sole and absolute discretion (upon the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith)behalf, may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salereasonably request.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Blackstone Private Credit Fund)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), subject to the following terms and conditions:
(i) immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied (or, if any Collateral Quality Test is not satisfied, it is improved);
(B) the Minimum Equity Condition is satisfied;
(C) the Borrowing Base is greater than or equal to the Advances outstanding; and
(D) no Facility Termination Event, Unmatured Facility Termination Event, Unmatured Investment Manager Event of Default or Investment Manager Event of Default shall have occurred and be continuing; provided that, no more than once in any twelve-month period, if an Unmatured Facility Termination Event or Unmatured Investment Manager Event of Default is continuing, the Borrower may make an Optional Sale if, after giving effect to such Optional Sale, such event is cured (although, for the avoidance of doubt, such event shall be continuing for all purposes hereunder until the settlement date of such Optional Sale); provided, notwithstanding the above, that the Borrower may make (i) any Optional Sale of any Collateral Obligation that, in the Collateral Manager’s reasonable judgment, has a significant risk of declining in credit quality and, with the lapse of time, becoming a Defaulted Collateral Obligation, if after giving effect to such Optional Sale, (a) no Facility Termination Event is continuing and (b) the aggregate Principal Balance of all such Collateral Obligations sold pursuant to this proviso in any twelve-month period does not exceed 15% of the Aggregate Eligible Collateral Obligation Amount in effect on the date of such sale, (ii) any Optional Sale of any Collateral Obligation if (x) the sale price is equal to or greater than the Principal Balance of such Collateral Obligation and (y) the proceeds from such Optional Sale are applied to reduce the Advances or (iii) any Optional Sale required as a result of the Required Sale Date.
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Borrower shall cause the Investment Manager to give the Administrative Agent, each Agent, the Collateral Custodian and the Collateral Agent written notice of such Optional Sale, which notice shall identify the related Collateral subject to such optional saleOptional Sale and the expected proceeds from such Optional Sale and include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating compliance with clauses (a)(i)(A), (B) and (C) above and all other conditions set forth herein are satisfied and (y) a certificate of the Investment Manager substantially in the form of Exhibit F-3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iii) such Optional Sale shall be made by the Investment Manager, on behalf of the Borrower (A) in accordance with the Investment Management Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Investment Manager, the Administrative Agent has given its prior written consent (which shall not be unreasonably withheld, conditioned or delayed); and
(v) on the date of such Optional Sale, all proceeds from such Optional Sale will be sent directly into the Collection Account.
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Borrower (or the purchaser thereof from the Borrower) without recourse, representation or warranty all of the consent right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Administrative Agent; so long as (i) except as otherwise agreed by the Administrative Agent pursuant to Section 2.07(j)(i)(A), the Borrower shall have provided to the Administrative Agent (with a copy to the Collateral Agent, the Collateral Administrator Custodian, each Agent and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice Agent, on behalf of its intent to effect an Optional Sale on the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the portion of the Collateral subject to such Optional Sale is at least equal to the aggregate Outstanding Loan Borrower, in recordable form if necessary, as the Borrower, or the Investment Manager on its behalf, may reasonably request.
(e) Notwithstanding the foregoing, the Principal Balance of all Collateral Obligations (other than Warranty Collateral Obligations released to the Loan Assets being Equityholder pursuant to a dividend by the Borrower or Collateral Obligations sold and purchased in connection therewith, and otherwise complies with to the pricing requirements set forth in clause (hEquityholder as a result of the Required Sale Date) below), (iiisold pursuant to Section 7.10(a) 100to the Equityholder or an Affiliate thereof or released to the Equityholder pursuant to a dividend by the Borrower shall not during the term of this Agreement exceed 20% of the net proceeds Net Purchased Loan Balance measured as of the date of such Optional Sale shall be deposited into the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, sale or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiencydividend; provided, that so long as the Principal Balance of all Defaulted Collateral Obligations (other conditions in this clause (c) and than Warranty Collateral Obligations released to the Agreement are satisfied in full, the Administrative Agent, in its sole and absolute discretion (upon the delivery of Equityholder pursuant to a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), may permit the offset (a “Permitted Offset”) dividend by the Servicer against Borrower or Collateral Obligations sold to the required purchase price Equityholder as a result of the Required Sale Date) sold pursuant to be deposited in Section 7.10(a) to the Collection Account under clause (ii) Equityholder or (iii) an Affiliate thereof or released to the Equityholder pursuant to a dividend by the Borrower shall not during the term of this Section 2.07(c) (and, if applicable, clause (i) Agreement exceed 10% of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to Net Purchased Loan Balance measured as of the Loan Assets subject to an Optional Saledate of such sale or dividend.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS Investment Corp III)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), subject to the following terms and conditions:
(i) immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied (or, if any Collateral Quality Test is not satisfied, it is improved);
(B) The Minimum Equity Test is satisfied;
(C) the Borrowing Base is greater than or equal to the Advances outstanding; and
(D) no Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default shall have occurred and be continuing; provided, that notwithstanding the above, the Borrower may at any time make (x) any Optional Sale of any Collateral Obligation that, in the Servicer’s reasonable judgment, has a significant risk of declining in credit quality and, with the lapse of time, becoming a Defaulted Collateral Obligation, if after giving effect to such Optional Sale, no Event of Default is continuing, (y) any Optional Sale of any Collateral Obligation if (I) the sale price is equal to or greater than the Principal Balance of such Collateral Obligation and (II) the proceeds from such Optional Sale are applied to reduce the Advances and (z) any Optional Sale required as a result of the Required Sale Date.
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Servicer, on behalf of the Borrower, shall give the Administrative Agent, the Collateral Custodian, the Collateral Agent and each Lender (via the Collateral Agent’s Website) written notice of such Optional Sale, which notice shall identify the related Collateral subject to such Optional Sale and the expected proceeds from such Optional Sale and include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating compliance with clauses (a)(i)(A), (B) and (C) above and all other conditions set forth in this Section 7.10 are satisfied and (y) a certificate of the Servicer substantially in the form of Exhibit F‑3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iii) such Optional Sale shall be made by the Servicer, on behalf of the Borrower (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Servicer, the Administrative Agent has given its prior written consent (which consent, if such Optional Sale is at par, shall not be unreasonably withheld, conditioned or delayed); and
(v) on the date of such Optional Sale, all proceeds from such Optional Sale will be deposited directly into the Collection Account .
(b) In connection with any Optional Sale, following deposit of all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Borrower without recourse, representation or warranty all of the consent right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Administrative Agent; so long as (i) except as otherwise agreed by the Administrative Agent pursuant to Section 2.07(j)(i)(A), the Borrower shall have provided to the Administrative Agent (with a copy to the Collateral Agent, the Collateral Administrator Custodian and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice Agent, on behalf of its intent to effect an Optional Sale on the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance portion of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of Collateral subject to such Optional Sale shall be deposited into to the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative AgentBorrower, in its sole and absolute discretion (upon recordable form if necessary, as the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), Borrower may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salereasonably request.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (HMS Income Fund, Inc.)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent following terms and conditions:
(i) immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied (or, (1) if (x) any Collateral Quality Test (other than the Minimum Diversity Test) is not satisfied it is maintained or improved and (y) the Minimum Diversity Test is satisfied, or (2) the Facility Agent shall have consented to such sale, in its sole discretion);
(B) the Minimum Equity Test is satisfied;
(C) the Borrowing Base is greater than or equal to the Advances outstanding; and
(D) no Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default shall have occurred and be continuing; provided, notwithstanding clause (A) through (C) above, so long as the Administrative AgentMinimum Diversity Test is satisfied immediately after giving effect to such sale, the Borrower may at any time make, solely during the Revolving Period, any Optional Sale of any Collateral Obligation if the sale price is equal to or greater than an amount equal to the Advance Rate multiplied by the greater of par and the related Purchase Price (expressed in Dollars) of such Collateral Obligation; provided, further, clause (D) shall not apply to any Optional Sale of assets during an Unmatured Event of Default so long as (ix) except as otherwise agreed by the Administrative Agent pursuant sale price of such assets is equal to Section 2.07(j)(i)(A)the fair market value thereof, (y) the proceeds of such sale are sufficient to cure such Unmatured Event of Default and (z) no more than three (3) such sales occur in any calendar year.
(ii) No later than the trade date of any Optional Sale, the Borrower Servicer, on behalf of the Borrower, shall have provided to give the Administrative Agent (with a copy to the Collateral Facility Agent, the Collateral Administrator Custodian and the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior Agent written notice (which may be via email to the Facility Agent, the Collateral Custodian and the Collateral Agent) of its intent such Optional Sale, which notice shall identify the related Collateral subject to effect an such Optional Sale on and the expected proceeds from such Optional Sale Dateand include (x) a written representation from the Servicer that, (ii) immediately after giving effect to such Optional Sale, the purchase price in cash deposited in Minimum Equity Test is satisfied and the Collection Account with respect to the Optional Sale Borrowing Base is at least greater than or equal to the aggregate Outstanding Loan Balance Advances outstanding and (y) a written calculation of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), Diversity Score immediately after giving effect to such Optional Sale;
(iii) 100% of the net proceeds of such Optional Sale shall be deposited into made by the Collection Account to be disbursed Servicer, on behalf of the Borrower (A) in accordance with Section 2.04 hereofthe Servicing Standard, (B) reflecting arm’s length market terms and (ivC) in a transaction in which the Borrower makes no event has occurred and is continuingrepresentations, warranties or would result from such Optional Saleflow-of-funds memo agreed to between the Facility Agent, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) the Equityholder and the Agreement are satisfied in full, Servicer (a copy of which will be provided to the Administrative Collateral Agent) and, in its sole the event of any conflict between such flow-of-funds memo and absolute discretion (upon the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) any provision of this Section 2.07(c) (andAgreement, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salesuch flow-of-funds memo will control.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Oaktree Specialty Lending Corp)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except as otherwise agreed immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is maintained or improved (other than the Minimum Diversity Test which must be satisfied);
(B) the Minimum Equity Test is satisfied;
(C) the Borrowing Base is greater than or equal to the Advance outstanding;
(D) no Event of Default, Unmatured Event of Default or Servicer Default shall have occurred and be continuing; and
(E) the Aggregate Eligible Collateral Obligation Amount of all Collateral Obligations sold by the Administrative Agent pursuant Borrower during the then-current calendar year does not exceed 20% of the highest Aggregate Eligible Collateral Obligation Amount on any day of such calendar year.
(ii) at least one (1) Business Day prior to Section 2.07(j)(i)(A)the date of any Optional Sale, the Borrower Servicer, on behalf of the Borrower, shall have provided to give the Administrative Agent (with a copy to the Collateral Facility Agent, the Collateral Administrator Custodian and the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior Agent written notice of its intent such Optional Sale, which notice shall identify the related Collateral subject to effect an such Optional Sale on and the expected proceeds from such Optional Sale Dateand include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, (ii) demonstrating that the purchase price in cash deposited in the Collection Account with respect to the Optional Sale Borrowing Base is at least greater than or equal to the aggregate Outstanding Loan Balance Advance outstanding and (y) a certificate of the Loan Assets being sold and purchased Servicer substantially in the form of Exhibit F‑3 requesting the release of the related Collateral Obligation File in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), such Optional Sale;
(iii) 100% of the net proceeds of such Optional Sale shall be deposited into made by the Collection Account to be disbursed Servicer, on behalf of the Borrower (A) in accordance with Section 2.04 hereofthe Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) no event if such Optional Sale is to an Affiliate of the Borrower or the Servicer, the Facility Agent has occurred and given its prior written consent (if such Optional Sale is continuing, or would result from for a purchase price less than 97% of par); and
(v) on the date of such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result all proceeds from such Optional Sale will be deposited directly into the Collection Account.
(b) In connection with any Optional Sale, which constitutes an Unmatured Event following deposit of Default all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Borrower without recourse, representation or a Borrowing Base Deficiency; providedwarranty all of the right, that title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so long as all other conditions in transferred shall be released from the Lien of this clause Agreement.
(c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of (i) one outside counsel to the Agreement are satisfied Facility Agent, each Agent and each Lender in fullconnection with any Optional Sale (provided that in the event of any conflict of interest, the Administrative Facility Agent (and any Agent or Lender that is an Affiliate of the Facility Agent, in its sole ) shall be entitled to separate counsel from each other Agent and absolute discretion (upon the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset Lender) and demonstrating compliance with clause (iv) above in connection therewith), may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable one outside counsel to the Loan Assets Collateral Agent and the Collateral Custodian in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Agent, on behalf of the Secured Parties, in the Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the portion of the Collateral subject to an such Optional SaleSale to the Borrower, in recordable form if necessary, as the Borrower may reasonably request.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (SCP Private Credit Income BDC LLC)
Optional Sales. (a) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except as otherwise agreed by immediately after giving effect to such Optional Sale:
(A) reserved;
(B) reserved;
(C) the Administrative Agent Borrowing Base is greater than or equal to the Loans outstanding; and
(D) no Event of Default, Unmatured Event of Default, Unmatured Servicer Event of Default or Servicer Event of Default shall have occurred and be continuing; provided that, no more than once in any twelve-month period, if an Unmatured Event of Default or Unmatured Servicer Event of Default is continuing, the Borrower may make an Optional Sale if, after giving effect to such Optional Sale, such event is cured (although, for the avoidance of doubt, such event shall be continuing for all purposes hereunder until the settlement date of such Optional Sale); provided, notwithstanding the above, that the Borrower may make (i) any Optional Sale of any Collateral Obligation that, in the Servicer’s reasonable judgment, has a significant risk of declining in credit quality and, with the lapse of time, becoming a Defaulted Collateral Obligation, if after giving effect to such Optional Sale, (a) no Event of Default is continuing and (b) the aggregate Principal Balance of all such Collateral Obligations sold pursuant to Section 2.07(j)(i)(A)this proviso in any twelve-month period does not exceed 20% of the Aggregate Eligible Collateral Obligation Amount in effect on the date of such sale or (ii) any Optional Sale of any Collateral Obligation if (x) the sale price is equal to or greater than the Principal Balance of such Collateral Obligation and (y) the proceeds from such Optional Sale are applied to reduce the Loans.
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Borrower shall have provided cause the Servicer to give the Administrative Agent (with a copy to Agent, each Lender Agent, the Collateral AgentCustodian, the Collateral Administrator and the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior Agent written notice of its intent such Optional Sale, which notice shall identify the related Collateral subject to effect an such optional sale and the expected proceeds from such Optional Sale on the Optional Sale Date, and include (iix) the purchase price in cash deposited in the Collection Account with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance an Officer’s Certificate computed as of the Loan Assets being sold date of such request and purchased in connection therewithafter giving effect to such Optional Sale, and otherwise complies demonstrating compliance with the pricing requirements set forth in clause clauses (h) belowa)(i)(A), (B) and (C) above and all other conditions set forth herein are satisfied and (y) a certificate of the Servicer substantially in the form of Exhibit F-3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iii) 100% of the net proceeds of such Optional Sale shall be deposited into made by the Collection Account to be disbursed Servicer, on behalf of the Borrower (A) in accordance with Section 2.04 hereofthe Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) no event if such Optional Sale is to an Affiliate of the Borrower or the Servicer, the Agent has occurred and is continuinggiven its prior written consent (which shall not be unreasonably withheld, conditioned or would result from delayed); and
(v) on the date of such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result all proceeds from such Optional Sale will be sent directly into the Collection Account.
(b) In connection with any Optional Sale, which constitutes an Unmatured Event following deposit of Default all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Borrower (or a Borrowing Base Deficiency; providedthe purchaser thereof from the Borrower) without recourse, that representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so long as all other conditions in transferred shall be released from the Lien of this clause Agreement.
(c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Agreement are satisfied in fullAgent, the Administrative Collateral Agent, the Collateral Administrator, the Collateral Custodian, each Lender Agent and each Lender in its sole and absolute discretion connection with any Optional Sale (upon including, but not limited to, expenses incurred in connection with the delivery release of a Notice the Lien of Permitted Securitization the Collateral Agent, on behalf of the Secured Parties, in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above Collateral in connection therewithwith such Optional Sale).
(d) In connection with any Optional Sale, may permit the offset (a “Permitted Offset”) Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release prepared by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable with respect to the Loan Assets portion of the Collateral subject to an such Optional SaleSale to the Borrower, in recordable form if necessary, as the Borrower, or the Servicer on its behalf, may reasonably request.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Blackstone Private Credit Fund)
Optional Sales. (a) The Borrower may on shall have the right to sell (or direct any Optional Sale Date, prepay all or portion of the Advances Outstanding in connection with the sale or other transfer of Securitization Subsidiary to sell) all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except as otherwise agreed immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied or, if not satisfied, maintained or improved (unless waived by the Administrative Facility Agent in connection with a Permitted Securitization);
(B) the Minimum Equity Condition is satisfied;
(C) (1) the Borrowing Base is greater than or equal to the Advances Outstanding and (2) the Foreign Currency Advance Amount shall not exceed the Foreign Currency Sublimit multiplied by 102.5% (solely with respect to any Optional Sale of Collateral Obligations denominated in a currency other than Dollars); and
(D) to the knowledge of a Responsible Officer of the Borrower and the Servicer, no Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default shall have occurred and be continuing; provided that, (i) an Event of Default or Unmatured Event of Default may occur and be continuing if such Optional Sale (x) relates to the sale of a Specified Multiple Recurring Revenue Loan as described in clause (ii) of the definition thereof or (y) cures any Specified Borrowing Base Breach; or (ii) an Unmatured Event of Default, including any Borrowing Base Deficiency that is subject to cure pursuant to Section 2.07(j)(i)(A)2.10, may occur and be continuing if such Optional Sale entirely cures such Unmatured Event of Default; provided further that, notwithstanding the foregoing or anything herein to the contrary, the Borrower shall have provided may make any Optional Sale, the trade date for which occurred prior to the Administrative occurrence of an Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default (and which Optional Sale was otherwise permitted hereunder as of such trade date), and the settlement date for which is scheduled to occur on a date following such Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default;
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Servicer, on behalf of the Borrower, shall give the Facility Agent, the Collateral Custodian and the Collateral Agent written notice of such Optional Sale, which notice shall identify the related Collateral subject to such Optional Sale and the expected proceeds from such Optional Sale and include an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating that the Borrowing Base is greater than or equal to the Advances Outstanding;
(iii) such Optional Sale shall be made by the Servicer, on behalf of the Borrowerapplicable Loan Party (A) in accordance with the Servicing Standard, (B) reflecting arm’s length market terms and (C) in a copy transaction in which the Borrowerapplicable Loan Party makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) if such Optional Sale is to an Affiliate of the Borrower or the Servicer after the end of the Revolving Period, (x) the proceeds received for each Collateral Obligation sold in connection therewith shall be no less than the greater of (A) the fair market value and (B) the Collateral Obligation Amount (without giving effect to the proviso to the definition thereof) of such Collateral Obligation or (y) otherwise, the Facility Agent has given its prior written consent;
(v) in no event shall the sum of the aggregate Principal Balance of Collateral Obligations sold pursuant to an Optional Sale (other than sales to any Existing ▇▇▇▇▇ BDC CLO pursuant to Section 9.36) exceed 25% of the highest aggregate Principal Balance of all Collateral Obligations at any time during the preceding 12 calendar months; provided that any Collateral Obligations transferred pursuant to an Optional Sale to the Servicer or an Affiliate of the Servicer with respect to a new issue collateralized loan obligation managed by the Servicer or an Affiliate of the Servicer and underwritten, arranged and/or structured by the Facility Agent or any Affiliate of the Facility Agent shall be excluded from the foregoing limit; provided further that, any Optional Sale of a Specified Multiple of Recurring Revenue Loan or Permitted Collateral Obligation shall be excluded from the foregoing limit; and
(vi) on the date of such Optional Sale, all proceeds from such Optional Sale will be deposited directly into the Collection Account.
(b) In connection with any Optional Sale, followingsimultaneously with the deposit of all proceeds from such Optional Sale into the Collection Account, the Collateral Agent shall be deemed to release and transfer to the Borrower without recourse, representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral Obligation(s) and related Collateral subject to such Optional Sale and such portion of the Collateral so transferred shall be released from the Lien of this Agreement.
(c) The Borrower hereby agrees to pay the reasonable and documented outside counsel legal fees and out-of-pocket expenses of the Facility Agent, the Collateral Agent, the Collateral Administrator Custodian, each Agent and each Lender in connection with any Optional Sale (including, but not limited to, expenses incurred in connection with the release of the Lien of the Collateral Custodian) not more than 45 days’ and at least 10 days’ prior written notice Agent, on behalf of its intent to effect an Optional Sale on the Optional Sale DateSecured Parties, (ii) the purchase price in cash deposited in the Collection Account Collateral in connection with such Optional Sale).
(d) In connection with any Optional Sale, the Collateral Agent shall, at the sole expense of the Borrower, execute such instruments of release with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance portion of the Loan Assets being sold and purchased in connection therewith, and otherwise complies with the pricing requirements set forth in clause (h) below), (iii) 100% of the net proceeds of Collateral subject to such Optional Sale shall be deposited into to the Collection Account to be disbursed in accordance with Section 2.04 hereof, and (iv) no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative AgentBorrower, in its sole and absolute discretion (upon recordable form if necessary, as the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), Borrower may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to be deposited in the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional Salereasonably request.
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Sources: Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.)
Optional Sales. (m) The Borrower may on any Optional Sale Date, prepay all or portion of shall have the Advances Outstanding in connection with the sale or other transfer of right to sell all or a portion of the Loan Assets in connection with a Permitted Securitization or a Permitted Refinancing Collateral Obligations (each, an “Optional Sale”), without subject to the consent of the Administrative Agent; so long as following terms and conditions:
(i) except as otherwise agreed by immediately after giving effect to such Optional Sale:
(A) each Collateral Quality Test is satisfied (or, if any Collateral Quality Test is not satisfied, it is improved);
(B) The Minimum Equity Test is satisfied;
(C) the Administrative Agent pursuant Borrowing Base is greater than or equal to Section 2.07(j)(i)(A)the Advances outstanding; and
(D) no Event of Default or Unmatured Event of Default shall have occurred and be continuing; provided, that notwithstanding the restrictions in clauses (A) through (D) above, the Borrower shall have provided may at any time make (x) any Optional Sale of any Collateral Obligation that, in the Servicer’s reasonable judgment, has a significant risk of declining in credit quality and, with the lapse of time, becoming a Defaulted Collateral Obligation, if after giving effect to such Optional Sale, no Event of Default is continuing, (y) any Optional Sale of any Collateral Obligation if (I) the sale price is equal to or greater than the Principal Balance of such Collateral Obligation and (II) the proceeds from such Optional Sale are applied to reduce the Advances and (z) any Optional Sale required as a result of the Required Sale Date.;
(ii) at least one (1) Business Day prior to the date of any Optional Sale, the Servicer, on behalf of the Borrower, shall give the Administrative Agent (with a copy to the Collateral Agent, the Collateral Administrator and Custodian, the Collateral CustodianAgent and each Lender (via the Collateral Agent’s Website) not more than 45 days’ and at least 10 days’ prior written notice of its intent such Optional Sale, which notice shall identify the related Collateral subject to effect an such Optional Sale on and the expected proceeds from such Optional Sale Dateand include (x) an Officer’s Certificate computed as of the date of such request and after giving effect to such Optional Sale, demonstrating compliance with clauses (a)(i)(A), (iiB) the purchase price in cash deposited in the Collection Account with respect to the Optional Sale is at least equal to the aggregate Outstanding Loan Balance of the Loan Assets being sold and purchased in connection therewith, (C) above and otherwise complies with the pricing requirements all other conditions set forth in clause this Section 7.10 are satisfied and (hy) below), a certificate of the Servicer substantially in the form of Exhibit F‑3 requesting the release of the related Collateral Obligation File in connection with such Optional Sale;
(iii) 100% of the net proceeds of such Optional Sale shall be deposited into made by the Collection Account to be disbursed Servicer, on behalf of the Borrower (A) in accordance with Section 2.04 hereofthe Servicing Standard, (B) reflecting arm’s length market terms and (C) in a transaction in which the Borrower makes no representations, warranties or covenants and provides no indemnification for the benefit of any other party (other than those which are customarily made or provided in connection with the sale of assets of such type);
(iv) no event if such Optional Sale is to an Affiliate of the Borrower or the Servicer, thethe Administrative Agent has occurred and is continuinggiven its prior written consent (which consent, or would result from ifto such Optional Sale, which constitutes unless such Optional Sale is at or above par, shall not be unreasonably withheld, conditioned or delayed)and is to a third party that is not an Event Affiliate of Default and no event has occurred and is continuingthe Borrower, the Equityholder or would result from the Servicer; and
(v) on the settlement date of such Optional Sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided, that so long as all other conditions in this clause (c) and the Agreement are satisfied in full, the Administrative Agent, in its sole and absolute discretion (upon the delivery of a Notice of Permitted Securitization in the form attached as Exhibit A setting forth the proposed offset and demonstrating compliance with clause (iv) above in connection therewith), may permit the offset (a “Permitted Offset”) by the Servicer against the required purchase price to proceeds from such Optional Sale will be deposited in directly into the Collection Account under clause (ii) or (iii) of this Section 2.07(c) (and, if applicable, clause (i) of Section 2.07(h) below) by an amount not to exceed the Minimum Credit Enhancement applicable to the Loan Assets subject to an Optional SaleAccount.
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