SALE AND CONTRIBUTION AGREEMENT between KENNEDY LEWIS CAPITAL COMPANY, as Seller and KLCC SPV GS1 LLC, as Purchaser Dated as of April 20, 2023
Exhibit 10.2
Certain portions of this document have been omitted pursuant to Items 601(b)(10)(vi) of Regulation S-K and, where applicable, have been marked
with “[***]” to indicate where omissions have been made. A copy of any omitted portion will be furnished supplementally to the Securities and Exchange Commission upon request; provided, however, that the registrant may request confidential
treatment pursuant to Rule 24b-2 of the Exchange Act for any document so furnished.
between
XXXXXXX XXXXX CAPITAL COMPANY,
as Seller
and
KLCC SPV GS1 LLC,
as Purchaser
Dated as of April 20, 2023
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS
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1
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SECTION 1.1
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Definitions.
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1
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SECTION 1.2
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Other Terms.
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2
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SECTION 1.3
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Computation of Time Periods.
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3
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SECTION 1.4
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Interpretation.
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3
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ARTICLE II CONVEYANCES OF TRANSFERRED ASSETS
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3
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SECTION 2.1
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Conveyances.
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3
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SECTION 2.2
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Actions Pending Completion of Assignments of Collateral Obligations.
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6
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SECTION 2.3
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Indemnification.
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7
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SECTION 2.4
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Administrative Convenience.
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8
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ARTICLE III CONSIDERATION AND PAYMENT; REPORTING
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8
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SECTION 3.1
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Purchase Price.
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8
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SECTION 3.2
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Payment of Purchase Price.
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9
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ARTICLE IV REPRESENTATIONS AND WARRANTIES
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9
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SECTION 4.1
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Seller’s Representations and Warranties.
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9
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SECTION 4.2
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Reaffirmation of Representations and Warranties by the Seller; Notice of Breach.
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14
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ARTICLE V COVENANTS OF THE SELLER
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14
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SECTION 5.1
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Protection of Title of the Purchaser.
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14
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SECTION 5.2
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General Covenants.
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16
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ARTICLE VI WARRANTY LOANS
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18
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SECTION 6.1
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Warranty Collateral Obligations.
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18
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SECTION 6.2
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Limitation on Sales to Seller and Affiliates.
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18
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ARTICLE VII CONDITIONS PRECEDENT
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19
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SECTION 7.1
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Conditions Precedent to Effectiveness.
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19
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SECTION 7.2
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Conditions Precedent to all Conveyances.
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19
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ARTICLE VIII RESERVED
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20
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ARTICLE IX ADDITIONAL RIGHTS AND OBLIGATIONS IN RESPECT OF THE TRANSFERRED ASSETS
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20
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SECTION 9.1
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Rights of the Purchaser.
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20
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ARTICLE X MISCELLANEOUS PROVISIONS
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21
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SECTION 10.1
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Amendments, Etc.
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21
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SECTION 10.2
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Governing Law: Submission to Jurisdiction.
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21
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SECTION 10.3
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Notices.
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22
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SECTION 10.4
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Severability of Provisions.
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22
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SECTION 10.5
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Further Assurances.
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23
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SECTION 10.6
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No Waiver; Cumulative Remedies.
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23
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SECTION 10.7
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Counterparts.
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23
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SECTION 10.8
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Binding Effect; Assignability; Third-Party Beneficiaries.
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24
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SECTION 10.9
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Merger and Integration.
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24
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SECTION 10.10
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Non-Petition.
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24
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SECTION 10.11
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Headings.
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25
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EXHIBITS
| Exhibit A | - |
Form of Purchase Notice |
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This SALE AND CONTRIBUTION AGREEMENT, dated as of April 20, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Agreement”), between XXXXXXX XXXXX CAPITAL COMPANY, a Delaware statutory trust, as seller (in such capacity, the “Seller”) and KLCC
SPV GS1 LLC, a Delaware limited liability company, as purchaser (in such capacity, the “Purchaser”).
W I T N E S S E T H:
WHEREAS, the Purchaser desires to purchase from the Seller certain loans and related assets existing from time to time after the Closing Date;
WHEREAS, the Seller may also wish to contribute certain loans and related assets to the Purchaser from time to time on each Purchase Date (or, if such sale is not
able to be effected on the Purchase Date, to grant an undivided 100% participation interest therein until such sale is effected);
WHEREAS, the Seller desires to sell, transfer, assign and contribute such loans and related contracts to the Purchaser upon the terms and conditions hereinafter set
forth (or, if such sale is not able to be effected on the Purchase Date, to grant an undivided 100% participation interest therein until such sale is effected);
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed by and between the Purchaser
and the Seller as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined). All capitalized terms used herein but not defined herein shall
have the respective meanings specified in, or incorporated by reference into, the Credit and Security Agreement, dated as of the date hereof (as amended, supplemented or otherwise modified and in effect from time to time, the “Credit Agreement”), by and among the Purchaser, as borrower, the lenders party thereto from time to time, Xxxxxxx Xxxxx Bank USA, as syndication agent and as administrative agent (in such
capacity, the “Administrative Agent”), State Street Bank and Trust Company, as collateral agent (in such capacity, the “Collateral Agent”),
as collateral custodian (in such capacity, the “Collateral Custodian”), and as collateral administrator (in such capacity, the “Collateral
Administrator”).
“Agreement” has the meaning set forth in the preamble hereto.
“Collateral Obligation” means a commercial loan, bond or participation interest.
“Convey” means to sell, transfer, assign, contribute or otherwise convey assets hereunder (including
through a participation).
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“Conveyance” has the meaning set forth in Section
2.1(b).
“Indemnified Party” has the meaning set forth in Section
2.3.
“Indorsement” has the meaning specified in Section 8-102(a)(11) of the UCC, and “Indorsed” has a
corresponding meaning.
“Initial Conveyance Date” has the meaning set forth in Section
2.1(b).
“Participated Loan” has the meaning set forth in Section
2.2(a).
“Participation Interests” has the meaning set forth in Section
2.2(a).
“Proceeds” means (a) any property (including but not limited to Cash and securities) received as a
Distribution on the Collateral Obligations or Participated Loans or any portion thereof, (b) any property (including but not limited to Cash and securities) received in connection with the sale, liquidation, exchange or other disposition of the
Collateral Obligations or Participated Loans or any portion thereof and (c) all proceeds (as such term is defined in the UCC) of the Collateral or any portion thereof.
“Purchase Date” means the Initial Conveyance Date and each Subsequent Conveyance Date.
“Purchase Notice” has the meaning set forth in Section
2.1(b).
“Purchase Price” has the meaning set forth in Section
3.1.
“Purchaser” has the meaning set forth in the preamble hereto.
“Repurchase Amount” means, for any Warranty Collateral Obligation for which a payment or substitution is
being made pursuant to this Agreement as of any time of determination, an amount equal to the Purchase Price paid by the Purchaser for such Collateral Obligation less all payments of Principal Proceeds received in connection with such Collateral
Obligation since the date it became a Transferred Asset plus any accrued and unpaid interest thereon since the last Payment Date.
“Schedule of Collateral Obligations” has the meaning set forth in Section 2.1(b).
“Seller” has the meaning set forth in the preamble hereto.
“Subsequent Conveyance Date” has the meaning set forth in Section
2.1(b).
“Transferred Assets” means each Collateral Obligation or Participated Loan Conveyed from the Seller to
the Purchaser pursuant to the terms of this Agreement.
“Warranty Collateral Obligations” has the meaning set forth in Section 6.1.
SECTION 1.2 Other Terms.
All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles. All terms used in Article 9 of the UCC, and not specifically defined herein, are used herein as defined in such
Article 9. The term “including” when used in this Agreement means “including without limitation.”
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SECTION 1.3 Computation
of Time Periods. Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until”
each means “to but excluding.”
SECTION 1.4 Interpretation.
(a) Each term defined in the singular form in Section 1.1 or elsewhere in this Agreement shall mean the plural thereof when the plural form of such term is used in this Agreement, the Credit Agreement or any other Transaction Document, certificate, report or other
document made or delivered pursuant hereto or thereto, and each term defined in the plural form in Section 1.1 shall mean the singular thereof when the singular form of such term is
used herein or therein.
(b) The words “hereof,” “herein,” “hereunder” and similar terms when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, the term “including” means “including without limitation,” and article, section, subsection, schedule and exhibit references herein are
references to articles, sections, subsections, schedules and exhibits to this Agreement unless otherwise specified.
(c) Unless otherwise specified, each reference in this Agreement or in any other
Transaction Document to a Transaction Document shall mean such Transaction Document as the same may from time to time be amended, restated, supplemented or otherwise modified in accordance with the terms of the Transaction Documents.
(d) For purposes of this Agreement, references to any party hereto includes its
successors and permitted assigns.
(e) Each reference to Collateral Obligation shall include any Participated Loan acquired
hereunder unless otherwise expressly noted.
ARTICLE II
CONVEYANCES OF TRANSFERRED ASSETS
SECTION 2.1 Conveyances.
(a) [Reserved].
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(b) In the event the Purchaser agrees, from time to time on or after the Closing Date to
purchase, acquire, accept or receive as a contribution, as applicable, one or more Collateral Obligations from the Seller, the Seller shall deliver written notice thereof to the Purchaser (with a copy to the Administrative Agent) substantially in
the form set forth in Exhibit A hereto (each, a “Purchase Notice”), designating the date of the proposed Conveyance (the date
of the first such Conveyance hereunder, the “Initial Conveyance Date”; and the date of each Conveyance occurring after the Initial Conveyance Date, each a “Subsequent Conveyance Date” and either, a “Conveyance Date”) and attaching a schedule identifying the Collateral Obligations or Participated Loans
proposed to be Conveyed on such Conveyance Date (as such schedules may be amended, supplemented, updated or otherwise modified from time to time, collectively, the “Schedule of Collateral
Obligations”). On the terms and subject to the conditions set forth in this Agreement and the Credit Agreement, the Seller shall (i) Convey to the Purchaser without recourse (except to the extent specifically provided herein), and
the Purchaser shall purchase, acquire, accept or receive as a contribution, as applicable, on the applicable Conveyance Date (each such purchase and sale being herein called a “Conveyance”),
all of the Seller’s right, title and interest in and to each Collateral Obligation then reported by the Seller on the Schedule of Collateral Obligations attached to the related Purchase Notice, together with all Proceeds of the foregoing and (ii)
transfer, or cause the deposit into, the Collection Account of all Proceeds received by the Seller on account of any Transferred Assets hereunder on and after the Purchase Date with respect to such Transferred Assets within two Business Days of
the receipt by the Seller thereof. The Seller hereby acknowledges that, except as expressly provided herein, each Conveyance to the Purchaser hereunder is absolute and irrevocable, without reservation or retention of any interest whatsoever by
the Seller.
(c) On and after each Purchase Date hereunder (or Elevation Date with respect to the
Participated Loans), the Purchaser shall own the Transferred Assets Conveyed by the Seller to the Purchaser on such Purchase Date free and clear of any Lien in favor of any Person, other than Permitted Liens, and the Seller shall not claim any
ownership interest in such Transferred Assets.
(d) It is the express intent of the Seller and the Purchaser that each Conveyance of
Transferred Assets by the Seller to the Purchaser pursuant to this Agreement be construed as an absolute sale and/or contribution of such Transferred Assets by the Seller to the Purchaser providing the Purchaser with the full risks and benefits of ownership of the Transferred Assets. Further, it is not the intention of the Seller and the Purchaser that any Conveyance be deemed a grant of a security interest in
the Transferred Assets by the Seller to the Purchaser to secure a debt or other obligation of the Seller. However, in the event that, notwithstanding the intent of the parties, the Conveyances hereunder shall be characterized as loans and not as
sales and/or contributions, then (i) this Agreement also shall be deemed to be, and hereby is, a security agreement within the meaning of the UCC and other applicable law, (ii) the Conveyances by the Seller provided for in this Agreement shall be
deemed to be, and the Seller hereby grants to the Purchaser, a security interest (and such security interest is hereby assigned by the Purchaser to the Collateral Agent, for the benefit of the Secured Parties) in, to and under all of the Seller’s
right, title and interest in, to and under, whether now owned or hereafter acquired, such Transferred Assets and all Proceeds of the foregoing, (iii) the possession by the Purchaser (or the Collateral Custodian on behalf of the Collateral Agent,
for the benefit of the Secured Parties) of such Transferred Assets and such other items of property constituting instruments, money, negotiable documents or chattel paper shall be, subject to clause
(iv) below, for purposes of perfecting such security interest pursuant to the UCC and (iv) acknowledgements from Persons holding such property shall be deemed acknowledgements from custodians, bailees or agents (as applicable) of
the Purchaser for the purpose of perfecting such security interest under applicable law. The Purchaser and its assignees shall have, with respect to such Transferred Assets and other related rights, in addition to all the other rights and
remedies available to the Purchaser and its assignees and under the other Transaction Documents, all the rights and remedies of a secured party under any applicable UCC.
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(e) The Seller and the Purchaser shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Transferred Assets to secure a debt or other obligation, such security interest would be deemed to be a perfected security
interest in favor of the Purchaser under applicable law and will be maintained as such throughout the term of this Agreement. The Seller represents and warrants that the Transferred Assets are being transferred with the intention of removing them
from the Seller’s estate pursuant to Section 541 of the Bankruptcy Code; provided that with respect to any Participated Loans, the Purchaser shall not be the record owner of legal title
of the Collateral Obligation until the Elevation Date of such Participated Loan, and each Conveyance of a Participation Interest as contemplated by this Agreement constitutes a conveyance, transfer and assignment of such Participation Interest,
including all beneficial and economic interests in the underlying loan from the Seller to the Purchaser, leaving the Seller with only “bare legal title” to such underlying loan and the Proceeds and any related collateral, such that the
Participated Loan (including such beneficial interest in the underlying loan and the Proceeds and any related collateral) shall not be part of the Seller’s estate, as determined pursuant to Section 541 of the Bankruptcy Code, in the event of the
filing of a bankruptcy petition by or against the Seller under any bankruptcy law.
(f) Neither the Purchaser nor any assignee of the Purchaser (including the Secured
Parties) shall have any obligation or liability to any obligor or client of the Seller (including any obligation to perform any obligation of the Seller, including with respect to any other related agreements) in respect of the Transferred Assets
(other than with respect to funding obligations to obligors pursuant to the terms of the applicable Underlying Instrument for Delayed Drawdown Collateral Obligations, as applicable). No such obligation or liability is intended to be assumed by
the Purchaser or any assignee of the Purchaser (including the Secured Parties) and any such assumption is expressly disclaimed. Without limiting the generality of the foregoing, the Conveyance of the Transferred Assets by the Seller to the
Purchaser pursuant to this Agreement does not constitute and is not intended to result in a creation or assumption by the Purchaser or any assignee of the Purchaser (including the Secured Parties), of any obligation of the Seller, as lead agent,
collateral agent or paying agent under any Collateral Obligation which is agented by a Person as part of a syndicated loan transaction.
(g) Actions of the Seller in connection
with each Conveyance.
(i) In connection with each Conveyance of a Transferred Asset
hereunder, the Seller (on behalf of the Purchaser) shall deliver, or cause to be delivered, any Underlying Instruments and any other documents required to be delivered pursuant to the Credit Agreement.
(ii) The Seller shall provide all information, and any other
reasonable assistance, to Collateral Custodian and the Collateral Agent necessary for the Collateral Custodian and the Collateral Agent, as applicable, to conduct the management, administration and collection of each Transferred Asset Conveyed
hereunder in accordance with the terms of the Collateral Documents.
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(iii) In connection with the purchase, acquisition, acceptance or
contribution, as applicable, by the Purchaser of each Transferred Asset as contemplated by this Agreement, the Seller further agrees that it shall, at its own expense, indicate clearly and unambiguously in its computer files on or prior to each
Purchase Date, and its financial statements, that such Transferred Asset has been acquired by the Purchaser in accordance with this Agreement.
SECTION 2.2 Actions Pending Completion of
Assignments of Collateral Obligations.
(a) In connection with the Conveyance of any Transferred Assets, to the extent that all
conditions specified in the related credit agreement, loan agreement or similar governing document to the transfer of record ownership of a Collateral Obligation to the Purchaser have not been satisfied on or prior to the Purchase Date, the
related Conveyance will take the form of the grant of an undivided 100% participation interest in such Collateral Obligation on the Purchase Date (each such Collateral Obligation, a “Participated
Loan”). With respect to any Participated Loan, the Seller and Purchaser will use commercially reasonable efforts to cause the relevant participation to be elevated to an assignment as soon as reasonably practicable, pursuant to the
provisions of Section 2.2(c), after the Purchase Date. Such elevation is referred to herein as the “Elevation” with respect
to any Participated Loan, and the date of any Elevation of such Participated Loan is referred to herein as the related “Elevation Date”. With respect to each Participated Loan, on each
Purchase Date, the Seller hereby sells, transfers and grants to the Purchaser, without recourse (except to the extent specifically provided herein) and the Purchaser hereby acquires from the Seller, a 100% undivided participation interest in such
Collateral Obligation, which interest shall include, to the extent permitted to be transferred under the terms governing such Collateral Obligation and under applicable law, all claims, causes of action and any other right of the Seller (in its
capacity as a lender under any credit documentation executed and delivered in connection with a Collateral Obligation), whether known or unknown, against any obligor or any of its affiliates, agents, representatives, contractors, advisors or
other Person arising under or in connection with such documentation or that is in any way based on or related to any of the foregoing or the loan transactions governed thereby, including contract claims, tort claims, malpractice claims, statutory
claims and all other claims at law or in equity related to the rights and obligations sold and purchased pursuant to this Agreement (each, a “Participation Interest” and collectively,
the “Participation Interests”), in each case, for settlement of Conveyance on the Purchase Date upon the terms and subject to the conditions set forth in this Agreement. For the
avoidance of doubt, the Seller and the Purchaser agree that the tenor, interest rate and other terms of a Participated Loan shall be coextensive with those of the underlying Collateral Obligation. Until Elevation occurs for each Participated
Loan, the Seller shall hold title to each of the Participated Loans for the benefit of the Purchaser to the extent of the Participation Interests.
(b) The Seller will not be held to the standard of care of a fiduciary but agrees that,
until the Elevation of each Participated Loan has been completed, it shall exercise the same duty of care in the administration and enforcement of the Participated Loan that it would exercise if it held the Participated Loans solely for its own
account, but in any event, no less than a commercially reasonable standard of care.
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(c) Subject to the terms and provisions of the applicable Participated Loans, the Seller
and the Purchaser shall use commercially reasonable efforts to effect an Elevation, as soon as reasonably practicable and in all events within ninety (90) days of the Purchase Date, with respect to each such Participated Loan and take such action
(including the execution and delivery of an assignment agreement) as shall be mutually agreeable in connection therewith and in accordance with the terms and conditions of each such Participated Loan and consistent with the terms of this
Agreement. The Seller shall pay any elevation fees, transfer fees and other expenses payable in connection with an Elevation and any expenses of administering each Participated Loan prior to its Elevation.
(d) In connection with each Elevation, the Seller shall direct the underlying administrative agent for each
Collateral Obligation to send all Proceeds in respect of each Participated Loan to the Collection Account.
SECTION 2.3 Indemnification.
(a) Without limiting any other rights which any such Person may have hereunder or under
applicable law, the Seller agrees to indemnify the Purchaser and its successors, transferees, and assigns (including each Secured Party) and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing
(each of the foregoing Persons being individually called an “Indemnified Party”), forthwith on demand, from and against any and all Indemnified Liabilities awarded against or incurred by
any of them arising out of or in connection with any acts or omissions of the Seller constituting bad faith, gross negligence or willful misconduct on the part of the Seller in connection with this Agreement or any transaction contemplated hereby
(and regardless of whether or not any such transactions are consummated); except to the extent (a) any such Indemnified Liabilities are found in a final, non‑appealable judgment by a
court of competent jurisdiction to have resulted solely from the gross negligence or willful misconduct of such Indemnified Party, any of its Affiliates or the respective officers, directors, employees, agents, managers of, and any Person
controlling any of, the foregoing, (b) Indemnified Liabilities in respect of any Transferred Asset due to creditworthiness of the related obligor or resulting from the performance of the Transferred Assets (including without limitation any change
in the market value of such Transferred Assets), (c) non-payment by any obligor of an amount due and payable with respect to a Transferred Asset and (d) Excluded Taxes and Taxes indemnifiable pursuant to the Credit Agreement.
(b) The obligations of the Seller under this Section 2.3 shall survive the termination of this Agreement.
(c) The Seller acknowledges that, pursuant to the Credit Agreement, the Purchaser shall
collaterally assign its rights of indemnity hereunder to the Collateral Agent, on behalf of the Secured Parties. Upon such collateral assignment, after the occurrence and during the continuance of an Event of Default, (a) the Collateral Agent, on
behalf of the Secured Parties, shall have all rights of the Purchaser hereunder and may in turn assign such rights, and (b) the obligations of the Seller under this Section 2.3(c) shall
inure to the Collateral Agent, on behalf of the Secured Parties. The Seller agrees that, upon such collateral assignment, after the occurrence and during the continuance of an Event of Default, the Collateral Agent, on behalf of the Secured
Parties, may enforce directly, without joinder of the Purchaser, the indemnities set forth in this Section 2.3.
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(d) Notwithstanding anything to the contrary herein, in no event shall the Seller be
liable to an Indemnified Party for any special, indirect, consequential, remote, speculative or punitive damages (as opposed to direct or actual damages) damages, even if the Seller has been advised of the likelihood of such loss or damage and
regardless of the form of action, and each Indemnified Party hereby waives, releases, and agrees not to sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(e) If (x) the Seller has made any indemnity payment pursuant to this Section 2.3, (y)
the recipient thereafter collects any payments from others in respect of such Indemnified Liabilities and (z) payments collected by the recipient from the Seller and others in respect of such Indemnified Liabilities exceed the amount necessary to
fully indemnify the recipient, then the recipient shall repay to the Seller an amount equal to the excess of the amount it has collected in respect of such Indemnified Liabilities over the amount necessary to fully indemnify the recipient in
respect of such Indemnified Liabilities.
SECTION 2.4 Administrative Convenience.
The Seller and the Purchaser acknowledge and agree that, solely for administrative convenience, the Seller may direct that a Collateral Obligation be titled directly into the name of the Purchaser, and/or that any document or assignment agreement
(or, in the case of any original promissory note, any chain of indorsement) required to be executed and delivered in connection with (a) the acquisition of a Collateral Obligation as a lender at the closing thereof may be executed and delivered
directly by the Purchaser at the direction of the Seller or (b) the transfer of a Collateral Obligation in accordance with the terms of the related Underlying Instruments may reflect that the Seller (or any affiliate thereof or any third party from
whom the Seller may acquire a Collateral Obligation) is assigning such Collateral Obligation directly to the Purchaser. Nothing in any such document or assignment agreement (or, in the case of any original promissory note, nothing in such chain of
indorsement) shall be deemed to impair the transfers of the related Collateral Obligation by the Seller to the Purchaser in accordance with the terms of this Agreement. The Seller and the Purchaser acknowledge and agree that, solely for
administrative convenience, any transfer document required to be executed and delivered in connection with the transfer of a Transferred Asset in accordance with the terms of the related Underlying Instruments may reflect that (i) the Seller (or
any Affiliate or third party from whom the Seller or the applicable Affiliate may purchase such Transferred Asset) is assigning such Transferred Asset directly to the Purchaser or (ii) the Purchaser is acquiring such Transferred Asset at the
closing of such Transferred Asset.
ARTICLE III
CONSIDERATION AND PAYMENT; REPORTING
SECTION 3.1 Purchase Price.
The purchase price for the Transferred Assets Conveyed on each Purchase Date (the “Purchase Price”) shall be in an amount in the applicable Specified Currency equal to the fair market
value (as agreed upon between the Seller and the Purchaser at the time of such Conveyance) of such Transferred Assets as of such date.
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SECTION 3.2 Payment of Purchase Price.
(a) The Purchase Price shall be paid on the related Purchase Date at the option of the Seller (i) by the Purchaser making a payment in cash in immediately available funds, (ii) by the Seller making a capital contribution to the Purchaser or (iii)
any combination of the foregoing clauses (i) and (ii) in an amount equal to the Purchase Price. To the extent cash received by the Seller for any transfer of a Collateral Obligation is less than the Purchase Price, the Seller will be deemed,
without any further action by any party hereto, to have made a capital contribution to the Purchaser in an amount equal to such difference.
(b) Upon the payment of the Purchase Price for any Conveyance, title to the Transferred
Assets included in such Conveyance shall vest in the Purchaser, whether or not the conditions precedent to such Conveyance and the other covenants and agreements contained herein were in fact satisfied; provided that the Purchaser shall not be deemed to have waived any claim it may have under this Agreement for the failure by the Seller in fact to satisfy any such condition precedent, covenant or agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 Seller’s Representations and
Warranties. The Seller represents and warrants to the Purchaser as of each Purchase Date:
(a) Due Organization; Power and
Authority. The Seller is a statutory trust, duly formed under the laws of its jurisdiction of formation, with full power and authority to own and operate its assets and properties, conduct the business in which it is now engaged
and to execute and deliver and perform its obligations under this Agreement and the other Transaction Documents to which it is a party.
(b) Due Qualification and Good Standing.
The Seller is validly existing and in good standing under the laws of its jurisdiction of formation. The Seller is duly qualified to do business and, to the extent applicable, is in good standing in each other jurisdiction in which the nature of
its business, assets and properties, including the performance of its obligations under this Agreement and the other Transaction Documents to which it is a party, requires such qualification, except where the failure to be so qualified or in good
standing would not reasonably be expected to have a Material Adverse Effect.
(c) Due Authorization; Execution and
Delivery; Legal, Xxxxx and Binding; Enforceability. The execution and delivery by the Seller of, and the performance of its obligations under the Transaction Documents to which it is a party and the other instruments, certificates
and agreements contemplated thereby are within its powers and have been duly authorized by all requisite action by it and have been duly executed and delivered by it and constitute its legal, valid and binding obligations enforceable against it
in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally or general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
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(d) Non-Contravention. None
of the execution and delivery by the Seller of this Agreement or the other Transaction Documents to which it is a party, the pledge of the Transferred Assets hereunder, the consummation of the transactions herein or therein contemplated, or
compliance by it with the terms, conditions and provisions hereof or thereof, will (i) conflict with, or result in a breach or violation of, or constitute a default under its Constitutive Documents, (ii) conflict with or contravene (A) any
applicable law, (B) any indenture, agreement or other contractual restriction binding on or affecting it or any of its assets, or (C) any order, writ, judgment, award, injunction or decree binding on or affecting it or any of its assets or
properties or (iii) result in a breach or violation of, constitute a default under, or permit the acceleration of any obligation or liability in, any contractual obligation or any agreement or document to which it is a party or by which it or any
of its assets are bound (or to which any such obligation, agreement or document relates), except in each case where such conflicts, breaches, violations or defaults could not reasonably be expected to have a Material Adverse Effect.
(e) Governmental Authorizations;
Governmental Filings. The execution, delivery and performance by the Seller of the Transaction Documents to which it is a party and the consummation of the transactions contemplated by the Transaction Documents do not and will not
require any registration with, consent or approval of, or notice to, or other action to, with or by, any Governmental Authority, except for filings and recordings with respect to the Collateral to be made, or otherwise delivered to Collateral
Agent for filing and/or recordation, as of the Initial Credit Date or the failure of which to obtain would not reasonably be expected to result in a Material Adverse Effect.
(f) Compliance with Agreements, Laws,
Etc. The Seller has duly observed and complied with all applicable laws relating to the conduct of its business and its assets, except where the failure to so observe or comply would not reasonably be expected to have a Material
Adverse Effect. The Seller has preserved and kept in full force and effect its legal existence. The Seller has preserved and kept in full force and effect its rights, privileges, qualifications and franchises, except where the failure to do so
would not reasonably be expected to result in a Material Adverse Effect.
(g) Sanctions; Anti-Corruption Laws; and
Anti-Money Laundering Laws. Neither the Seller nor any of its Subsidiaries is subject to any Sanctions or, to its knowledge, is under investigation for an alleged breach of Sanctions by a Governmental Authority that enforces
Sanctions. It is in compliance with Anti-Corruption Laws and Anti-Money Laundering Laws. The Seller will notify the Lenders and the Administrative Agent in writing not more than five (5) Business Days after becoming aware of any breach of this Section 4.1(g).
(h) Place of Business. The
principal place of business and chief executive office of the Seller, and the offices where the Seller keeps all its records, are located at its address specified in Section 10.3 (as
such location may be changed by written notice to the Purchaser in accordance with this Agreement). As of the Closing Date there are not, and during the past four months (or such shorter time as the Seller has been in existence) there have not
been, any other locations where the Seller is located (as that term is used in the UCC of the jurisdiction where such principal place of business is located) other than 000 Xxxx 00xx Xxxxxx, Xxxxx 0000; Xxx Xxxx, XX 00000.
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(i) Backup Security Interest.
(i) Notwithstanding that it is the express intent of the parties hereto that each Conveyance of Transferred Assets hereunder be an absolute sale and/or contribution of such Transferred Assets by the Seller to the Purchaser, in the event that the
Conveyances hereunder shall be characterized as loans and not as sales and/or contributions, this Agreement creates a valid and continuing Lien on the Transferred Assets in favor of the Purchaser pursuant to the lien granted by the Seller
pursuant to Section 2.1(d), and the Collateral Agent, as assignee, pursuant to the all-assets lien granted by the Purchaser to the Collateral Agent under the Credit Agreement, as
secured party, for the benefit of the Secured Parties, which security interest is validly perfected under Article 9 of the UCC (to the extent such security interest may be perfected under such article), and is enforceable as such against
creditors of and purchasers from the Seller; (ii) the Transferred Assets are comprised of Instruments, Security Entitlements, General Intangibles, Certificated Securities, Uncertificated Securities, Securities Accounts, Investment Property,
Deposit Accounts and Proceeds and such other categories of collateral under the applicable UCC; with respect to Transferred Assets that constitute Security Entitlements, all of such Security Entitlements have been credited to the Collateral
Account, subject to the delivery requirements contained in the Pledge Agreement; the Seller owns and has good and marketable title to the Transferred Assets acquired by the Purchaser on the applicable Purchase Date, free and clear of any Lien
(other than Permitted Liens); (iii) the Seller has received all consents and approvals required by the terms of any Collateral Obligation to the sale and granting of a security interest in the Collateral Obligations hereunder to the Purchaser and
the Collateral Agent, as assignee on behalf of the Secured Parties, in each case, to the extent required pursuant to the Credit Agreement; (iv) the Seller has taken all necessary steps to file or authorize the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest of the Purchaser in that portion of the Transferred Assets in which a security interest may be perfected by
filing pursuant to Article 9 of the UCC as in effect in the applicable jurisdiction; (v) all original executed copies of each underlying promissory note constituting or evidencing any Transferred Asset have been or, subject to the delivery
requirements contained in the Credit Agreement, will be delivered to the Collateral Custodian; (vi) with respect to a Transferred Asset that constitutes a Certificated Security, such certificated security has been delivered to the Collateral
Custodian, as bailee of the Collateral Agent as assignee of the Purchaser on behalf of the Secured Parties and, if in registered form, has been specially indorsed (within the meaning of the UCC) to the Purchaser (or the Collateral Agent as
assignee) or in blank by an effective Indorsement or has been registered in the name of the Purchaser (or the Collateral Agent as assignee) upon original issue or registration of transfer by the Seller of such Certificated Security; and in the
case of an Uncertificated Security, either by (A) causing the Purchaser or its designee to become the registered owner of such Uncertificated Security or (B) causing the issuer of such Uncertificated Security to agree to comply with instructions
of the Collateral Agent without further consent of the Purchaser, upon original issue or registration of transfer by the issuer of such Uncertificated Security, in each case, to the extent required by the Credit Agreement. The Seller agrees that,
after the occurrence and during the continuance of an Event of Default, the Collateral Agent, on behalf of the Secured Parties, shall have all rights and remedies of a secured party under applicable law, including the UCC.
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(j) Fair Consideration; No Avoidance
for Collateral Obligation Payments. With respect to each Transferred Asset Conveyed hereunder, the Seller Conveyed such Transferred Asset to the Purchaser in exchange for the Purchase Price, made in accordance with the provisions
of this Agreement, in an amount which constitutes fair consideration and reasonably equivalent value in the form of cash and/or capital contribution per Section 3.2. Each such
Conveyance referred to in the preceding sentence shall not have been made for or on account of an antecedent debt owed by the Seller to the Purchaser and, accordingly, no such sale is or may be voidable or subject to avoidance under Title 11 of
the Bankruptcy Code and the rules and regulations thereunder. In addition, no such Conveyance shall have been made with the intent to hinder or delay payment to or defraud any creditor of the Seller.
(k) Eligibility of Transferred Assets.
Each Transferred Asset that is Conveyed hereunder meets, at the time of such Conveyance, the Collateral Obligation Criteria. As of each Purchase Date, the Schedule of Collateral Obligations delivered on such Purchase Date provides an accurate and
complete listing of all the Transferred Assets as of such Purchase Date and the information contained therein with respect to the identity of the obligor of such Transferred Assets and the amounts owing with respect thereto is true and correct in
all material respects. For purposes of this Section 4.1(k), the time of Conveyance of a Collateral Obligation as to which a Participation Interest has been Conveyed shall be the time of
Conveyance of such Participation Interest.
(l) True Sale. Each
Transferred Asset Conveyed hereunder is intended to be Conveyed by the Seller to the Purchaser as a “true sale”.
(m) Information True and Correct.
No representation or warranty of the Seller (other than with respect to projections, forward-looking information, general economic data and general industry information) contained herein, taken as a whole, contains any untrue statement of a
material fact or omits to state a material fact (known to the Seller, in the case of any information obtained by it from an obligor or other unaffiliated third party) necessary in order to make the statements contained herein not misleading in
light of the circumstances in which the same were made. There are no facts known (or which should upon the reasonable exercise of diligence be known) to the Seller (other than matters of a general economic nature) that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect and that have not been disclosed herein or in such other documents, certificates and statements furnished to the Administrative Agent or the Lenders for use in
connection with the transactions contemplated by the Transaction Documents, immediately after giving effect to the delivery of any Financial and Other Information and any and all updates and deliveries to the Administrative Agent or Lenders from
time to time.
(n) Bulk Sales. The
execution, delivery and performance of this Agreement and the transactions contemplated hereby do not require compliance with any “bulk sales” act or similar law by the Seller.
(o) Taxes. The Seller has
filed or caused to be filed all U.S. federal income tax returns and all other material tax returns which are required to be filed by it, if any, and has paid all U.S. federal income taxes and all other material taxes shown to be due and payable
on such returns, if any, or pursuant to any assessment received by any such Person, other than any such taxes, assessments or charges that are being contested in good faith by appropriate proceedings and for which appropriate reserves in
accordance with GAAP have been established.
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(p) Special Purpose Entity.
The Purchaser is an entity with assets and liabilities separate and distinct from those of the Seller and any Affiliates thereof, and the Seller hereby acknowledges that the Administrative Agent, the Lenders and the other Secured Parties are
entering into the transactions contemplated by the Credit Agreement in reliance upon the Purchaser’s identity as a legal entity that is separate from the Seller and from each other Affiliate of the Seller. Therefore, from and after the date of
execution and delivery of this Agreement, the Seller shall take all reasonable steps, including all steps that the Purchaser or the Administrative Agent may from time to time reasonably request, to maintain the Purchaser’s identity as a legal
entity that is separate from the Seller and from each other Affiliate of the Seller, and to make it manifest to third parties that the Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate
thereof and not just a division of the Seller or any such other Affiliate.
(q) No Proceedings. There are
no Adverse Proceedings pending or, to the knowledge of any Authorized Officer of the Seller, threatened against it, before any Governmental Authority having jurisdiction over it or its properties that would reasonably be expected to have a
Material Adverse Effect.
(r) Selection Procedures. In
selecting the Transferred Assets and for Affiliates of the Purchaser, no selection procedures were employed which are intended to be adverse to the interests of any Agent or any Lender.
(s) No Fraud. To the actual
knowledge of any Authorized Officer of the Seller, each Collateral Obligation that was originated by the Seller was originated without any fraud or material misrepresentation on the part of any party thereto.
(t) Price of Collateral Obligations.
The Purchase Price for each Collateral Obligation Conveyed by the Seller to the Purchaser hereunder represents the fair market value of such Collateral Obligation as of the time of Conveyance hereunder, as may have changed from the time such
Collateral Obligation was originally acquired or originated by the Seller.
(u) Allocation of Charges.
There is not any agreement or understanding between the Seller and the Purchaser (other than as expressly set forth in the Credit Agreement or as consented to by the Administrative Agent), providing for the allocation or sharing of obligations to
make payments or otherwise in respect of any Taxes, fees, assessments or other governmental charges, it being understood, that for U.S. federal income tax purposes, the Purchaser shall be a “disregarded entity”.
(v) ERISA Compliance. Except
as would not constitute a Material Adverse Effect, neither it nor any member of its ERISA Group shall have any liability under any Plan or Multiemployer Plan.
(w) Proceeds. The Seller
acknowledges that (a) except in connection with a Participation Interest (to the extent permitted hereunder and only while pending elevation to a full assignment), all obligors (or the underlying administrative agents or other agents, as
applicable) have been directed to make all payments directly to the Collection Account and (b) all Proceeds received by it with respect to the Transferred Assets pledged hereunder are held and shall be held in trust for the benefit of the
Collateral Agent, on behalf of the Secured Parties until deposited into the appropriate Collection Account in accordance with the Credit Agreement.
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(x) Participated Loans. The
Seller acknowledges that its sale of the Participated Loans to the Purchaser is irrevocable, except to the extent otherwise provided under the Transaction Documents.
SECTION 4.2 Reaffirmation of Representations
and Warranties by the Seller; Notice of Breach.
On each Purchase Date, the Seller, by accepting the Proceeds of such Conveyance, shall be deemed to have certified that all representations and warranties described
in Section 4.1 are true and correct in all material respects (or if such representation and warranty is already qualified by the words “material”, “materially” or “Material Adverse
Effect”, then such representation and warranty shall be true and correct in all respects) on and as of such day as though made on and as of such day (or if specifically referring to an earlier date, as of such earlier date). The representations and
warranties set forth in Section 4.1 shall survive (i) the Conveyance of the Transferred Assets to the Purchaser, (ii) the termination of the rights and obligations of the Purchaser and
the Seller under this Agreement and (iii) the termination of the rights and obligations of the Purchaser under the Credit Agreement. Upon discovery by an Authorized Officer of the Purchaser or the Seller of a breach of any of the foregoing
representations and warranties in any material respect, the party discovering such breach shall give prompt written notice to the other and to the Administrative Agent.
ARTICLE V
COVENANTS OF THE SELLER
SECTION 5.1 Protection of Title of the
Purchaser. The Seller hereby covenants and agrees with the Purchaser that, from the date hereof, and until the Obligations have been paid in full: (a) On or prior to the Closing Date, the Seller shall have filed or caused to
be filed UCC-1 and/or UCC‑3 financing statements, naming the Seller as “Debtor/Seller”, naming the Purchaser as “Secured Party/Buyer”, and naming the Collateral Agent, for the benefit of the Secured Parties, as “Total Assignee”, and describing the
Transferred Assets to be acquired by the Purchaser, with the office of the Secretary of State of Delaware. From time to time thereafter, the Seller shall file such financing statements and cause to be filed such continuation statements, all in such
manner and in such places as may be required by law (or deemed desirable by the Purchaser or any assignee thereof) to perfect, preserve and maintain the security interest of the Collateral Agent for the benefit of the Secured Parties, in each
Transferred Asset acquired by the Purchaser hereunder, as the case may be, and in the Proceeds thereof. The Seller shall deliver (or cause to be delivered) to the Purchaser, the Collateral Agent, the Collateral Custodian and the Administrative
Agent (who will provide each Lender with a copy promptly upon receipt thereof) file-stamped copies of, or filing receipts for, any document filed as provided above, as soon as available following such filing. The Seller agrees that it will from
time to time, at its expense, take all actions, that the Purchaser, the Collateral Agent or the Administrative Agent may reasonably request in order to perfect, protect or more fully evidence the Conveyances hereunder and the security interest
granted in each Transferred Asset, or to enable the Purchaser, the Collateral Agent, the Administrative Agent or the Secured Parties to exercise and enforce their rights and remedies hereunder or under the Credit Agreement.
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(b) On or prior to each Purchase Date hereunder, the Seller shall take all steps necessary
under all applicable law in order to Convey to the Purchaser the Transferred Assets being acquired by the Purchaser on such Purchase Date to the Purchaser so that, upon the Conveyances of such Transferred Assets from the Seller to the Purchaser
pursuant to the terms hereof on such Purchase Date, the Purchaser will have acquired good and marketable title to and a valid ownership interest in such Transferred Assets, free and clear of any Lien (subject only to Permitted Liens). On or
prior to each Purchase Date hereunder, the Seller shall take all steps required under applicable law in order for the Seller to grant to the Purchaser (and for the Purchaser to assign such grant to the Collateral Agent, for the benefit of the
Secured Parties), a first priority perfected security interest (subject only to Permitted Liens) in the Transferred Assets being acquired by the Purchaser on such Purchase Date and, from time to time thereafter, the Seller shall take all such
actions as may be required by applicable law to preserve, maintain and protect the Collateral Agent’s first priority perfected security interest in (subject only to Permitted Liens), the Transferred Assets which have been acquired by the
Purchaser hereunder.
(c) The Seller shall direct any agent or administrative agent for any Collateral
Obligation (or in connection with any Participation Interest to the extent not elevated to full assignment, any participation seller) to remit all payments and collections with respect to such Collateral Obligation and, if applicable, to direct
the obligor with respect to such Collateral Obligation to remit all such payments and collections with respect to such Collateral Obligation directly to the Collection Account. The Seller shall promptly identify any collections received as being
on account of Interest Proceeds or Principal Proceeds and shall transfer, or cause to be transferred, all Proceeds received to the appropriate Collection Account within two Business Days after such Proceeds are received.
(d) At any time after the occurrence or declaration of the Maturity Date, the Purchaser,
the Collateral Agent or the Administrative Agent may direct the Seller to notify the obligors, at Seller’s expense, of the Purchaser’s (or its assigns) or the Secured Parties’ interest in each Transferred Asset under this Agreement and may direct
that payments of all amounts due or that become due under any or all of the Transferred Assets be made directly to the Purchaser (or its assigns), the Collateral Agent or the Administrative Agent.
(e) The Seller shall, not earlier than six months prior to and not later than the day
prior to the fifth anniversary of the date of filing of any financing statement filed pursuant to this Agreement or in connection with any Conveyance hereunder, unless the Maturity Date shall have occurred, file or cause to be filed an
appropriate continuation statement with respect to such financing statement and the Purchaser hereby authorizes the Seller to file such continuation statements.
(f) The Seller shall mark its master data processing records so that, from and after the
time of Conveyance under this Agreement of each Transferred Asset to the Purchaser and the grant of a security interest in such Transferred Assets by the Purchaser to the Collateral Agent for the benefit of the Secured Parties under the Credit
Agreement, the Seller’s master data processing records (including archives) that refer to such Transferred Asset shall indicate clearly that such Transferred Asset has been acquired by the Purchaser hereunder and pledged by the Purchaser to the
Collateral Agent, on behalf of the Secured Parties, under the Credit Agreement.
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(g) The Seller hereby irrevocably authorizes the Purchaser, the Collateral Agent or the
Administrative Agent at any time and from time to time at the Purchaser’s, the Collateral Agent’s or the Administrative Agent’s sole discretion and appoints the Purchaser, the Collateral Agent and the Administrative Agent as its true and lawful
attorney-in-fact to act on behalf of the Seller to file financing statements on behalf of the Seller, as debtor, reasonably necessary or desirable in the Purchaser’s, the Collateral Agent’s or the Administrative Agent’s sole discretion to perfect
and to maintain the perfection and priority of the security interest of the Purchaser or the Collateral Agent in the Transferred Assets in such offices as the Purchaser, the Collateral Agent or the Administrative Agent in their sole discretion
deem reasonably necessary or desirable to perfect and to maintain the perfection and priority of the interests of the Purchaser or the Collateral Agent in the Transferred Assets. This appointment is coupled with an interest and is irrevocable
prior to the Payment in Full of the Obligations.
SECTION 5.2 General Covenants.
The Seller hereby covenants and agrees with the Purchaser that, from the date hereof, and until the Obligations have been paid in full, unless the Purchaser otherwise consents in writing:
(a) Compliance with Agreements, Laws,
Etc. The Seller shall (i) duly observe and comply with all applicable laws relating to the conduct of its business and its assets, except where the failure to so observe or comply would not reasonably be expected to have a Material
Adverse Effect, (ii) preserve and keep in full force and effect its legal existence and (iii) preserve and keep in full force and effect its rights, privileges, qualifications and franchises, except where the failure to do so would not reasonably
be expected to result in a Material Adverse Effect.
(b) [Reserved].
(c) Cash Management Systems: Deposit of
Proceeds. To the extent the Seller (in its capacity as such) receives any Proceeds with respect to the Transferred Assets, the Seller shall transfer, or cause to be transferred, all such Proceeds to the Collection Account by the
close of business on the second Business Day following the date such Proceeds are received by the Seller.
(d) Books and Records. The
Seller shall keep proper books of record and account in which full and correct entries shall be made of all financial transactions with the Purchaser and the assets and business of the Seller related to its obligations under this Agreement or any
Transferred Assets or assets proposed to be transferred, in each case, in accordance with GAAP, maintain and implement administrative and operating procedures necessary to fulfill its obligations hereunder, and keep and maintain all documents,
books, records and other information necessary or reasonably advisable and relating to the Transferred Assets prior to their Conveyance hereunder for the collection of all Transferred Assets.
(e) Accounting of Purchases.
The Seller will not account for or treat the transactions contemplated hereby in any manner other than as a sale or contribution of the Transferred Assets by the Seller to the Purchaser including for tax purposes, where appropriate; provided that (i) the Seller may consolidate the Purchaser and/or its properties and other assets for accounting purposes in accordance with GAAP and shall, in any such consolidated
financial statement of the Seller, disclose appropriately in a footnote that such Transferred Assets are owned by the Purchaser and (ii) for U.S. federal income Tax reporting purposes, the Purchaser is treated as a “disregarded entity” for so
long as it has a single equity owner and, therefore, the transfer of Transferred Assets by the Seller to the Purchaser hereunder will not be recognized for such purposes.
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(f) Taxes. The Seller will
file all U.S. federal income tax returns and all other material tax returns which are required to be filed by it, if any, and will pay all U.S. federal income taxes and all other material taxes shown to be due and payable on such returns, if any,
or pursuant to any assessment received by any such Person, other than (x) any such taxes, assessments or charges that are being contested in good faith by appropriate proceedings and for which appropriate reserves in accordance with GAAP have
been established or (y) any such failure that would not reasonably be expected to have a Material Adverse Effect.
(g) Liens. The Seller shall
not create, incur, assume or permit to exist any Lien on or with respect to any of its rights under any of the Transaction Documents or with respect to the Transferred Assets other than Permitted Liens. For the avoidance of doubt, this Section 5.2(g) shall not apply to any property retained by the Seller and not Conveyed or purported to be Conveyed hereunder.
(h) Change of Name, Etc. The
Seller shall not change its name, identity or corporate structure in any manner that would make any financing statement or continuation statement filed by the Seller (or by the Administrative Agent on behalf of the Seller) in accordance with Section 5.1 seriously misleading or change its jurisdiction of organization, unless the Seller shall have given the Purchaser and the Administrative Agent at least ten (10) Business Days
prior written notice thereof, and shall promptly file appropriate amendments to all previously filed financing statements and continuation statements.
(i) Sale Characterization.
The Seller shall not make statements or disclosures, or treat the transactions contemplated by this Agreement (other than for tax (as appropriate) or accounting purposes) in any manner other than as a true sale, contribution or absolute
assignment of the title to and sole record and beneficial ownership interest of the Transferred Assets; provided that the Seller may consolidate the Purchaser and/or its properties and
other assets for accounting purposes in accordance with GAAP and shall, in any such consolidated financial statement of the Seller, disclose appropriately in a footnote that such Transferred Assets are owned by the Purchaser.
(j) [Reserved].
(k) Separate Identity. The
Seller acknowledges that the Administrative Agent, the Lenders and the other Secured Parties are entering into the transactions contemplated by this Agreement and the Credit Agreement in reliance upon the Purchaser’s identity as a legal entity
that is separate from the Seller and each other Affiliate of the Seller. Accordingly, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable steps to maintain the Purchaser’s identity as a legal
entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof
and not just a division of the Seller or any such other Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller will take all other actions necessary on its part to ensure
that the Purchaser is at all times in compliance with Section 5.3(b) of the Credit Agreement; provided, that the Seller does not hereby agree to maintain the solvency of the Purchaser.
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(l) Compliance with Sanctions;
Anti-Money Laundering. The Seller shall comply with Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws and shall maintain or be subject to policies and procedures reasonably designed to ensure compliance therewith.
ARTICLE VI
WARRANTY LOANS
SECTION 6.1 Warranty Collateral Obligations.
The Seller agrees that, with respect to any Transferred Asset, in the event of a breach of any representation or warranty applicable to such Transferred Asset set
forth in Section 4.1(i), (j) or (k), in each case as of the
Purchase Date with respect thereto (each such Transferred Asset, a “Warranty Collateral Obligation”), no later than 30 days after the earlier of (x) knowledge of such breach on the part of
an Authorized Officer of the Seller and (y) receipt by an Authorized Officer of the Seller of written notice thereof given by the Purchaser, the Administrative Agent or any other Secured Party, the Seller shall either (a) pay to the Collection
Account in immediately available funds the Repurchase Amount with respect to the Warranty Collateral Obligation(s) to which such breach relates or (b) substitute for such Warranty Collateral Obligation(s) one or more Collateral Obligations meeting
the Collateral Obligation Criteria with an Adjusted Balance at least equal to the Repurchase Amount of the Warranty Collateral Obligation(s) being replaced; provided that no such
repayment or substitution shall be required to be made with respect to any Warranty Collateral Obligation (and such Collateral Obligation shall cease to be a Warranty Collateral Obligation) if, on or before the expiration of such 30 day period, the
representations and warranties in Section 4.1(i), (j) or (k), as
applicable, with respect to such Warranty Collateral Obligation shall be made true and correct in all respects with respect to such Warranty Collateral Obligation as if such Warranty Collateral Obligation had been Conveyed to the Purchaser on such
day. It is understood and agreed that the obligation of the Seller to purchase such Warranty Collateral Obligation or substitute such Warranty Collateral Obligation is not intended to, and shall not, constitute a guaranty of the collectability or
payment of any Transferred Asset which is not collected, not paid, or uncollectible on account of the insolvency, bankruptcy or financial inability to pay of the related obligor.
SECTION 6.2 Limitation on Sales to Seller and Affiliates. Pursuant to Section 8.1
of the Credit Agreement, at any time after the Closing Date, the Purchaser may sell any Collateral Obligations to the Seller or any Affiliate thereof; provided that, unless otherwise
consented to by the Administrative Agent, the Aggregate Principal Amount of all Equity Holder Collateral Obligations (other than Warranty Collateral Obligations) sold pursuant to the Credit Agreement to the Equity Holder or an Affiliate thereof
(which shall not, for the avoidance of doubt, include Fund Affiliates) shall not in aggregate exceed 25% of the Equity Holder Purchased Loan Balance measured as of the date of such sale; provided,
further, that the Aggregate Principal Amount of all Equity Holder Collateral Obligations that are Defaulted Obligations (other than Warranty Collateral Obligations) sold pursuant to Section 8.1(b) of the Credit Agreement to the
Equity Holder or an Affiliate thereof (which shall not, for the avoidance of doubt, include Fund Affiliates) shall not in any twelve-month period exceed 10% of the Equity Holder Purchased Loan Balance measured as of the date of such sale or
dividend.
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ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.1 Conditions Precedent to
Effectiveness. The obligations of the Purchaser to pay the Purchase Price for the Transferred Assets sold on the Initial Conveyance Date shall be subject to the satisfaction of the following conditions on or prior to the
Closing Date:
(a) a copy of this Agreement duly executed by each of the parties
hereto;
(b) proper financing statements describing the Transferred Assets, and
naming the Seller as the “Debtor/Seller” and the Purchaser as “Secured Party/Buyer”, or other similar instruments or documents, in form and substance sufficient for filing under the UCC or any comparable law of any and all jurisdictions as may be
necessary to perfect the Purchaser’s security interest in all Transferred Assets;
(c) copies of properly authorized termination statements or statements
of release (on Form UCC-3) or other similar instruments or documents, if any, in form and substance sufficient for filing under the UCC or any comparable law of any and all jurisdictions as may be necessary to release all security interests and
similar rights of any Person in the Transferred Assets previously granted by the Seller;
(d) copies of tax and judgment lien searches in all jurisdictions
reasonably requested by the Purchaser or its assignees and requests for information (or a similar UCC search report certified by a party acceptable to the Purchaser and its assigns), dated a date reasonably near to the Closing Date, and with
respect to such requests for information or UCC searches, listing all effective financing statements which name the Seller as debtor, together with copies of such financing statements (none of which shall cover any Transferred Assets); and
(e) one or more favorable legal opinions of counsel to the Seller with
respect to the perfection and enforceability of the security interest hereunder and such other matters as the Purchaser or any assignee thereof may reasonably request.
SECTION 7.2 Conditions Precedent to all
Conveyances. The obligations of the Purchaser to pay the Purchase Price for the Transferred Assets sold on any Purchase Date shall be subject to the satisfaction of the following conditions:
(a) All representations and warranties of the Seller contained in this Agreement shall be
true and correct in all material respects (or if such representation and warranty is already qualified by the words “material”, “materially” or “Material Adverse Effect”, then such representation and warranty shall be true and correct in all
respects) on such Purchase Date (or, it specifically referring to an earlier date, as of such earlier date);
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(b) The Seller shall not be in breach in any material respect of any obligations required
to be performed by the provisions of this Agreement as of the applicable Purchase Date;
(c) The Maturity Date has not yet occurred;
(d) (i) The Purchaser shall have received a duly executed and completed Purchase Notice
and (ii) the Seller shall have received evidence of the approval of the Administrative Agent, in its sole and absolute discretion of the Conveyance to the Purchaser of the Collateral Obligations identified on the Purchase Notice; and
(e) The Seller shall have taken all steps necessary under all applicable law in order to
Convey to the Purchaser the Transferred Assets being Conveyed on such Purchase Date (or in the case of the Participated Loans, the Elevation Date), upon the Conveyance of such Transferred Asset from the Seller to the Purchaser pursuant to the
terms hereof, the Purchaser will have acquired good and marketable title to and a valid ownership interest in such Transferred Asset, free and clear of any Lien (other than Permitted Liens), and upon the Conveyance of any Participated Loan from
the Seller to the Purchaser pursuant to the terms hereof, the Purchaser will have acquired an undivided 100% participation interest in such Collateral Obligation on the Purchase Date, free and clear of any Lien (other than Permitted Liens).
ARTICLE VIII
RESERVED
ARTICLE IX
ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE TRANSFERRED ASSETS
SECTION 9.1 Rights of the Purchaser.
(a) After the occurrence and during the continuance of an Event of Default, the Seller
hereby authorizes the Purchaser, the Investment Manager, the Collateral Agent, the Administrative Agent, and/or their respective designees or assignees to take any and all steps in Seller’s name and on behalf of the Seller that the Purchaser, the
Investment Manager, the Collateral Agent, the Administrative Agent and/or their respective designees or assignees determine are reasonably necessary or appropriate to collect all amounts due under any and all Transferred Assets and to enforce or
protect the Purchaser’s, the Collateral Agent’s, the Administrative Agent’s and the Lenders’ rights under this Agreement, including endorsing the name of the Seller on checks and other instruments representing Interest Proceeds and Principal
Proceeds and enforcing such Transferred Assets.
(b) Except as set forth in Section 6.1
with respect to the repurchase or substitution of certain Collateral Obligations, the Purchaser shall have no obligation to account for, replace, substitute or return any Transferred Assets to the Seller. The Purchaser shall have no obligation
to account for or to return Interest Proceeds or Principal Proceeds, or any interest or other finance charge collected pursuant thereto, to the Seller, irrespective of whether such Interest Proceeds and Principal Proceeds and charges are in
excess of the Purchase Price for such Transferred Asset.
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(c) The Purchaser shall have the right to further assign, transfer, deliver, hypothecate,
subdivide or otherwise deal with each Transferred Asset and all of the Purchaser’s right, title and interest in, to and under this Agreement, pursuant to this Agreement or the Credit Agreement.
(d) The Purchaser shall have the sole right to retain any gains or profits created by
buying, selling or holding each Transferred Asset and shall have the sole risk of and responsibility for losses or damages created by such buying, selling or holding.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Amendments, Etc. This Agreement and the rights and obligations of
the parties hereunder may not be amended, supplemented, waived or otherwise modified except in an instrument in writing signed by the Purchaser and the Seller and, so long as any Obligations are outstanding, consented to in writing by the
Administrative Agent. Any reconveyance executed in accordance with the provisions hereof shall not be considered an amendment or modification to this Agreement.
SECTION 10.2 Governing Law: Submission to
Jurisdiction.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT OR
ANY OTHER TRANSACTION DOCUMENT (EXCEPT, AS TO ANY OTHER TRANSACTION DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(b) Each party hereto irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or proceeding relating to
this Agreement or the other Transaction Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of the State of New York in the Borough of
Manhattan, the courts of the United States of America for the Southern District of New York, and the appellate courts of any of them;
(ii) consents that any such action or proceeding may be brought in any court described in
Section 10.2(b)(i) and waives to the fullest extent permitted by applicable law any objection that it may now or hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such party at its address set forth in Section 10.3 or at such
other address as may be permitted thereunder;
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(iv) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law; and
(v) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding against any Secured Party arising out of or relating to this Agreement or any other Transaction Document any special, exemplary, punitive or consequential damages.
SECTION 10.3 Notices. All
notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing and shall be personally delivered or sent by certified mail, electronic mail, postage prepaid to the intended party at the address of such
party set forth below:
(a) in the case of the Purchaser:
KLCC SPV GS1 LLC
c/o Xxxxxxx Xxxxx Capital Company
000 Xxxxxxx Xxxxxx, Xxxxx 0000
New York, NY 10281
Attention: Xxxx Xxxxx; Xxxxxx Xxxxx
Telephone: [***]
Email: [***]
in the case of the Seller:
Xxxxxxx Xxxxx Capital Company
000 Xxxxxxx Xxxxxx, Xxxxx 0000
New York, NY 10281
Attention: Xxxx Xxxxx; Xxxxxx Xxxxx
Telephone: [***]
Email: [***]
Notices and communications by e-mail shall be effective when sent, and notices and communications sent by other means shall be effective when received.
SECTION 10.4 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of this Agreement shall for any reason whatsoever be held invalid, then such covenants, agreements, provisions, or terms shall be deemed severable from the remaining covenants,
agreements, provisions, or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement.
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SECTION 10.5 Further Assurances.
(a) The Purchaser and the Seller each agree that at any time and from time to time, at
its expense and upon reasonable request of the Administrative Agent or the Collateral Agent, it shall promptly execute and deliver all further instruments and documents, and take all reasonable further action, that is necessary or desirable to
perfect and protect the Conveyances and security interests granted or purported to be granted by this Agreement or to enable the Collateral Agent or any of the Secured Parties to exercise and enforce its rights and remedies under this Agreement
with respect to any Transferred Asset. Without limiting the generality of the foregoing, the Seller authorizes the filing of such financing or continuation statements, or amendments thereto, and such other instruments or notices as may be
necessary or desirable or that the Purchaser or the Collateral Agent (acting solely at the Administrative Agent’s request) as the assignee of the Purchaser may reasonably request to protect and preserve the Conveyances and security interests
granted by this Agreement.
(b) The Purchaser and the Seller agree to do and perform, from time to time, any and all
acts and to execute any and all further instruments reasonably requested by the other party more fully to effect the purposes of this Agreement and the other Transaction Documents, including the execution of any financing statements or
continuation statements or equivalent documents relating to the Transferred Assets for filing under the provisions of the UCC or other laws of any applicable jurisdiction.
(c) The Purchaser and the Seller hereby severally authorize the Collateral Agent, upon
receipt of written direction from the Administrative Agent, to file one or more financing or continuation statements, and amendments thereto, relating to all or any part of the Transferred Assets.
(d) The Seller shall furnish to the Collateral Agent and the Administrative Agent from
time to time such reports in connection with the Transferred Assets as the Collateral Agent (acting solely at the Administrative Agent’s request) or the Administrative Agent may reasonably request, all in reasonable detail, provided that such
information is in the possession of the Seller or reasonably obtainable thereby without undue burden or expense and not subject to any applicable confidentiality restrictions prohibiting such disclosure to the Collateral Agent or the
Administrative Agent, as applicable.
SECTION 10.6 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of the Purchaser, the Seller or the Administrative Agent, any right, remedy, power or privilege hereunder, shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not
exhaustive of any rights, remedies, powers and privilege provided by law.
SECTION 10.7 Counterparts.
This Agreement may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement. Signature pages provided in the form of a “pdf” or similar imaged document transmitted by electronic transmission (including .jpeg file or any electronic signature complying with the
U.S. federal ESIGN Act of 2000, including Orbit, Adobe Sign, DocuSign, or any other similar platform identified by the Purchaser or the Seller and reasonably available at no undue burden or expense to the Collateral Administrator, Collateral
Custodian or Collateral Agent) shall be deemed original signatures for all purposes hereunder. Any electronically signed document delivered via email from a person purporting to be an Authorized Officer shall be considered signed or executed by
such Authorized Officer on behalf of the applicable Person. To the extent received by an Authorized Officer, none of the Collateral Administrator, Collateral Custodian or Collateral Agent shall have a duty to inquire into or investigate the
authenticity or authorization of any such electronic signature and shall be entitled to conclusively rely on any such electronic signature without any liability with respect thereto.
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SECTION 10.8 Binding Effect;
Assignability; Third-Party Beneficiaries. a) This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. The Administrative Agent and the
Collateral Agent, for the benefit of the Secured Parties, are intended by the parties hereto to be third-party beneficiaries of this Agreement.
(b) Notwithstanding anything to the contrary contained herein, this Agreement may not be
assigned by the Purchaser or the Seller except as permitted by this Section 10.8 or the Credit Agreement. Simultaneously with the execution and delivery of this Agreement, the
Purchaser will collaterally assign all of its right, title and interest in this Agreement to the Collateral Agent, for the benefit of the Secured Parties, to which collateral assignment the Seller hereby expressly consents. After the occurrence
and during the continuance of an Event of Default, the Collateral Agent, for the benefit of the Secured Parties, under the Credit Agreement upon such collateral assignment may enforce the provisions of this Agreement, exercise the rights of the
Purchaser and enforce the obligations of the Seller hereunder without joinder of the Purchaser.
SECTION 10.9 Merger and Integration.
Except as specifically stated otherwise herein, this Agreement and the other Transaction Documents set forth the entire understanding of the parties relating to the subject matter hereof, and all prior understandings, written or oral, are
superseded by this Agreement and the other Transaction Documents.
SECTION 10.10 Non-Petition.
The Seller hereby agrees not to institute against, or join, cooperate with or encourage any other Person in instituting against, the Purchaser any bankruptcy, reorganization, receivership, arrangement, insolvency, moratorium or liquidation
proceeding or other proceeding under federal or state bankruptcy or similar laws until at least one year and one day, or, if longer, the applicable preference period then in effect plus one day, after the Payment in Full of all outstanding
Obligations and the termination of all Commitments under the Credit Agreement. The Seller hereby acknowledges that (i) the Purchaser shall, immediately upon Conveyance hereunder, grant a security interest in the Transferred Assets to the Collateral
Agent, for the benefit of the Secured Parties, pursuant to the Credit Agreement, and (ii) Proceeds generated by the Transferred Assets will be applied to payment of the Purchaser’s obligations under the Credit Agreement. In addition, the Seller
shall have no recourse for any amounts payable or any other obligations arising under this Agreement against any officer, member, director, employee, partner, Affiliate or security holder of the Purchaser or any of its successors or assigns.
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The provisions of this Section 10.10 are a material inducement for the Purchaser to enter into this
Agreement and the transactions contemplated hereby and for the Administrative Agent and the Secured Parties to enter into the Credit Agreement and the transactions contemplated thereby and are an essential term hereof. The Purchaser may seek and
obtain specific performance of such provisions (including injunctive relief), including, without limitation, in any bankruptcy, reorganization, arrangement, winding-up, insolvency, moratorium or liquidation proceedings, or other proceedings under
United States federal or state bankruptcy laws or any similar laws.
SECTION 10.11 Headings. The
headings herein are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof.
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IN WITNESS WHEREOF, the Purchaser and the Seller each have caused this Agreement to be duly executed by their respective officers as of the day and year first above
written.
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XXXXXXX XXXXX CAPITAL COMPANY,
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By:
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/s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Title: Chief Financial Officer
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KLCC SPV GS1 LLC, as Purchaser
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By:
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Xxxxxxx Xxxxx Capital Company, as Initial Member
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By:
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/s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Title: Chief Financial Officer
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Exhibit A
FORM OF PURCHASE NOTICE
[Date]
To: KLCC SPV GS1 LLC
c/o Xxxxxxx Xxxxx Capital Company
000 Xxxxxxx Xxxxxx, Xxxxx 0000
New York, NY 10281
Attention: Xxxx Xxxxx; Xxxxxx Xxxxx
Telephone: [***]
Email: [***]
with a copy to:
c/o Goldman, Xxxxx & Co.
00 Xxxxxx Xxxxxx, 0xx Floor
Jersey City, NJ 07302
Attention: Operations
| Re: | Purchase Notice for Conveyance |
|
Date of ______________, 20__
Ladies and Gentlemen:
This Purchase Notice is delivered to you pursuant to Section 2.1(b) of the Sale and Contribution
Agreement, dated as of April 20, 2023 (together with all amendments, if any, from time to time made thereto, the “Sale Agreement”), between KLCC SPV GS1 LLC, as purchaser (the “Purchaser”), and Xxxxxxx Xxxxx Capital Company, as seller. Unless otherwise defined herein or the context otherwise requires, capitalized terms used herein have the meanings provided in the
Sale Agreement.
In accordance with Section 2.1(b) of the Sale Agreement, the Seller hereby offers to Convey to the
Purchaser on the above-referenced Purchase Date pursuant to the terms and conditions of the Sale Agreement the Collateral Obligations listed on Schedule I hereto, together with all Proceeds of the foregoing.
Please wire the cash portion of the Purchase Price to the Seller pursuant to the wiring instructions included at the end of this letter.
The Seller represents that the conditions described in Section 7.2 of the Sale Agreement have been
satisfied with respect to such Conveyance.
The Seller agrees that if prior to the Purchase Date any matter certified to herein by it will not be true and correct in all respects at such time as if then made,
it will immediately so notify the Purchaser. Except to the extent, if any, that prior to the Purchase Date the Purchaser shall receive written notice to the contrary from the Seller, each matter certified to herein shall be deemed once again to be
certified as true and correct in all respects at the Purchase Date as if then made.
The Seller has caused this Purchase Notice to be executed and delivered, and the certification and warranties contained herein to be made, by its duly authorized
officer this ___ day of ________, 20__.
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Very truly yours,
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XXXXXXX XXXXX CAPITAL COMPANY
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By:
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Name:
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Title:
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Wire Instructions
Bank: ABA:
Account Name:
Account Number:
For further credit to account:
Schedule I
Schedule of Collateral Obligations
[TO BE ATTACHED]
