GOLUB CAPITAL BDC 2010-1 LLC NOTES PURCHASE AGREEMENT
EXECUTION
COPY
▇▇▇▇▇
CAPITAL BDC 2010-1 LLC
NOTES
U.S.
$174,000,000 CLASS A SENIOR SECURED FLOATING RATE NOTES DUE 2021
U.S.
$10,000,000 CLASS B SENIOR SECURED FLOATING RATE NOTES DUE 2021
July 16,
2010
▇▇▇▇▇
Fargo Securities, LLC,
as the
Initial Purchaser (the “Initial
Purchaser”)
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
8th
Floor
Charlotte,
NC 28288
Attention: Asset-Backed
Finance – ▇▇▇▇▇ Capital BDC 2010-1 LLC
Ladies
and Gentlemen:
Section
1. Authorization
of Notes.
▇▇▇▇▇
Capital BDC, Inc. (the “Company”), as
designated manager of ▇▇▇▇▇ Capital BDC 2010-1 Holdings LLC (the “Depositor”), has duly
authorized the sale of the ▇▇▇▇▇ Capital BDC 2010-1 LLC Notes, consisting of the
Class A Notes (the “Class A Notes”), the
Class B Notes (the “Class B Notes” and,
together with the Class A Notes, the “Offered Notes”) and
the Subordinated Notes (the “Subordinated Notes”
and, together with the Offered Notes, the “Notes”) of ▇▇▇▇▇
Capital BDC 2010-1 LLC, a Delaware limited liability company (the “Issuer”). The
Class A Notes will be issued in an aggregate principal amount of $174,000,000, the Class B Notes will be
issued in an aggregate principal amount of $10,000,000 and the Subordinated
Notes will be issued in an aggregate principal amount of
$116,000,000. The Notes will be secured by the assets of the
Issuer. The Depositor will be the sole equity member of the
Issuer. The Notes will be issued pursuant to an Indenture, to be
dated as of July 16, 2010 (the “Indenture”), between
the Issuer and U.S. Bank National Association, as the Trustee (the “Trustee”). The
primary assets of the Issuer will be a pool of commercial middle market loans,
or participation interests therein, originated or purchased by the Company
(collectively, the “Collateral
Obligations”). The Company will sell and/or contribute to the
Depositor all of its right, title and interest of the Company in and to the
Collateral Obligations and the Depositor will transfer and assign to the Issuer
all of its right, title and interest of the Depositor in and to the Collateral
Obligations pursuant to a Master Loan Sale Agreement, to be dated as of July 16,
2010 (the “Master Loan
Sale Agreement”), between the Company, the Depositor and the
Issuer. Pursuant to the Indenture, as security for the indebtedness
represented by the Notes, the Issuer will pledge and grant to the Trustee a
security interest in the Collateral Obligations, and its rights under the Master
Loan Sale Agreement. The Collateral Obligations will be managed by GC
Advisors LLC (the “Collateral Manager”)
pursuant to a Collateral Management Agreement, to be dated as of July 16, 2010
(the “Collateral
Management Agreement”), between the Issuer and the Collateral
Manager. The Issuer has retained U.S. Bank National Association (in
such capacity, the “Collateral
Administrator”) to perform certain administrative duties with respect to
the Collateral Obligations pursuant to a Collateral Administration Agreement, to
be dated as of July 16, 2010 (the “Collateral Administration
Agreement”), between the Issuer and the Collateral
Administrator. This Purchase Agreement (the “Agreement”), the
Master Loan Sale Agreement, the Indenture, the Collateral Management Agreement
and the Collateral Administration Agreement are referred to collectively herein
as the “Transaction
Documents.”
Capitalized
terms used herein but not otherwise defined shall have the meanings set forth in
the Indenture.
The
Offered Notes are to be offered without being registered under the Securities
Act of 1933, as amended (the “Securities Act”), (i)
to “qualified institutional buyers” in compliance with the exemption from
registration provided by Rule 144A under the Securities Act (“QIBs”), (ii) in
offshore transactions in reliance on Regulation S under the Securities Act
(“Regulation
S”), and (iii) to institutional “accredited investors” (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act) (“Institutional Accredited
Investors”) who, in each case, are “qualified purchasers” (“Qualified
Purchasers”) for purposes of Section 3(c)(7) under the Investment Company
Act of 1940, as amended (the “1940
Act”).
In
connection with the sale of the Offered Notes, the Company has prepared a
preliminary offering circular dated June 24, 2010 (including any exhibits
thereto and all information incorporated therein by reference, the “Preliminary
Memorandum”), and a final offering circular dated July 13, 2010
(including any exhibits, amendments or supplements thereto and all information
incorporated therein by reference, the “Final Memorandum”,
and each of the Preliminary Memorandum and the Final Memorandum, a “Memorandum”)
including a description of the terms of the Offered Notes, the terms of the
offering, and the Issuer. It is understood and agreed that the close
of business on July 15, 2010 constitutes the time of the contract of sale for
each purchaser of the Offered Notes offered to the investors for purposes of
Rule 159 under the Securities Act (the “Time of Sale”) and
that (i) the Final Memorandum and (ii) the information set forth on Schedule II hereto
constitute the entirety of the information conveyed to investors as of the Time
of Sale (the “Time of
Sale Information”).
It is
understood and agreed that nothing in this Agreement shall prevent the Initial
Purchaser from entering into any agency agreements, underwriting agreements or
other similar agreements governing the offer and sale of securities with any
issuer or issuers of securities, and nothing contained herein shall be construed
in any way as precluding or restricting the Initial Purchaser’s right to sell or
offer for sale any securities issued by any person, including securities similar
to, or competing with, the Notes.
During
each Interest Accrual Period, the Class A Notes shall bear interest at a per annum rate equal to the
then applicable LIBOR plus 2.40% per annum and the Class B
Notes shall bear interest at a per annum rate equal to the
then applicable LIBOR plus 2.40% per annum.
Each of
the Company, the Depositor and the Issuer, as applicable, hereby agrees with the
Initial Purchaser as follows:
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Section
2. Purchase
and Sale of Offered Notes.
Subject
to the terms and conditions and in reliance upon the representations and
warranties set forth herein, the Issuer agrees to sell to the Initial Purchaser
the Offered Notes, and the Initial Purchaser has agreed to use its commercially
reasonable efforts to place the aggregate principal amount of Offered Notes set
forth on Schedule
I hereto with investors in accordance with the terms
hereof. If purchased, the Class A Notes will be purchased at a price
of 100% and the Class B Notes will be purchased at a price of
100%. It is understood and agreed that the structuring and placement
fee payable by the Issuer to the Initial Purchaser on the Closing Date with
respect to the Class A Notes is $1,740,000 (1.00% of the initial principal
balance of the Class A Notes) and the structuring fee payable by the Issuer to
the Initial Purchaser on the Closing Date with respect to the Class B Notes is
$50,000 (0.50% of the initial principal balance of the Class B
Notes). Such fees payable by the Issuer may be netted by the Initial
Purchaser against its purchase price payment for the Offered
Notes. It is understood and agreed that the Initial Purchaser will
sell all of the Class B Notes to the Depositor on the Closing
Date. It is understood and agreed that the Initial Purchaser is not
acquiring, and has no obligation to acquire, the Subordinated Notes (which
Subordinated Notes will be acquired by the Depositor on the Closing Date
pursuant to the Master Loan Sale Agreement). It is further understood
and agreed that the Initial Purchaser may retain the Offered Notes, purchase the
Offered Notes for its own account, or sell the Offered Notes to its affiliates
or to any other investor in accordance with the applicable provisions hereof and
of the Indenture.
(a) In
addition, whether or not the transaction contemplated hereby shall be
consummated, the Company agrees to pay (or cause to be paid by the Issuer) all
costs and expenses incident to the performance by the Company of its obligations
hereunder and under the documents to be executed and delivered in connection
with the offering, issuance, sale and delivery of the Offered Notes (the “Documents”),
including, without limitation or duplication, (i) the fees and disbursements of
counsel to the Company; (ii) the fees and expenses of the Trustee and the
Collateral Administrator incurred in connection with the issuance of the Offered
Notes and their or its counsel, as applicable; (iii) the fees and expenses of
any bank establishing and maintaining accounts on behalf of the Issuer or in
connection with the transaction; (iv) the fees and expenses of the
accountants for the Company, including the fees for the “comfort letters” or
“agreed–upon procedures letters” required by the Initial Purchaser, any rating
agency or any purchaser in connection with the offering, sale, issuance and
delivery of the Offered Notes; (v) all expenses incurred in connection with the
preparation and distribution of each Memorandum and other disclosure materials
prepared and distributed and all expenses incurred in connection with the
preparation and distribution of the Transaction Documents; (vi) the fees charged
by any securities rating agency for rating the Offered Notes; (vii) the fees for
any securities identification service for any CUSIP or similar identification
number required by the purchasers or requested by the Initial Purchaser;
(viii) the reasonable fees and disbursements of counsel to the Initial
Purchaser; (ix) all expenses in connection with the qualification of the Offered
Notes for offering and sale under state securities laws, including the fees and
disbursements of counsel and, if requested by the Initial Purchaser, the cost of
the preparation and reproduction of any “blue sky” or legal investment
memoranda; (x) any federal, state or local taxes, registration or filing fees
(including Uniform Commercial Code financing statements) or other similar
payments to any federal, state or local governmental authority in connection
with the offering, sale, issuance and delivery of the Offered Notes; (xi) all
expenses associated with listing the Offered Notes on the Irish Stock Exchange;
and (xii) the reasonable fees and expenses of any special counsel or other
experts required to be retained to provide advice, opinions or assistance in
connection with the offering, issuance, sale and delivery of the Offered
Notes.
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Section
3. Delivery.
Delivery
of the Offered Notes shall be made in the form of one or more global
certificates delivered to The Depository Trust Company, except that any Offered
Note to be sold by the Initial Purchaser to an Institutional Accredited Investor
that is also a Qualified Purchaser for purposes of Section 3(c)(7) of the 1940
Act, but that is not a QIB (as such terms are defined herein), shall be
delivered in fully registered, certificated form in an amount not less than the
applicable minimum denomination set forth in the Final Memorandum at the offices
of Dechert LLP at 10:00 a.m. New York City, New York time, on July 16,
2010, or such other place, time or date as may be mutually agreed upon by the
Initial Purchaser and the Company (the “Closing
Date”). Subject to the foregoing, the Offered Notes will be
registered in such names and such denominations as the Initial Purchaser shall
specify in writing to the Company and the Trustee. The Subordinated
Notes shall be delivered to the Depositor on the Closing Date in fully
registered, certificated form in the permitted denominations and the required
proportions set forth in the Final Memorandum.
Section
4. Representations
and Warranties of the Company.
The
Company represents and warrants to the Initial Purchaser, as of the date hereof
and as of the Closing Date, (a) with respect to the Company, in its individual
capacity, (b) with respect to the Depositor, in its capacity as designated
manager on behalf of the Depositor, and (c) with respect to the Issuer, in its
capacity as designated manager on behalf of the Issuer, that:
(i) The
Final Memorandum and any additional information and documents concerning the
Offered Notes, including but not limited to one or more marketing books or
preliminary offering circulars, delivered by or on behalf of the Company to
prospective purchasers of the Offered Notes (collectively, such additional
information and documents, the “Additional Offering
Documents”), did not, each as of their respective dates or date on which
such statement was made and, with respect to the Final Memorandum, as of the
Closing Date, include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements in each, in light of the
circumstances under which they were made, not misleading; provided that the Company
makes no representation or warranty as to the information contained in or
omitted from the Final Memorandum or the Additional Offering Documents in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of the Initial Purchaser referenced in the last sentence
of Section 8(a)
herein.
(ii) The
Time of Sale Information, as of the Time of Sale, did not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading; provided that the Company
makes no representation or warranty as to the information contained in or
omitted from the Time of Sale Information in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of the
Initial Purchaser referenced in the last sentence of Section 8(a)
herein.
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(iii) The
Company is a Delaware corporation, duly organized and validly existing under the
laws of the State of Delaware, has all corporate power and authority necessary
to own or hold its properties and conduct its business in which it is engaged as
described in each Memorandum and has all licenses necessary to carry on its
business as it is now being conducted and is licensed and qualified in each
jurisdiction in which the conduct of its business (including, without
limitation, the origination and acquisition of Collateral Obligations and
performing its obligations hereunder and under the other Transaction Documents)
requires such licensing or qualification and in which the failure so to qualify
would have a material adverse effect on the business, properties, assets, or
condition (financial or otherwise) of the Company.
(iv) This
Agreement has been duly authorized, executed and delivered by the Company, the
Depositor and the Issuer and, assuming due authorization, execution and delivery
thereof by the other parties hereto, constitutes a valid and legally binding
obligation of the Company, the Depositor and the Issuer enforceable against the
Company, the Depositor and the Issuer in accordance with its terms, subject, as
to enforcement only, to the effect of bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors’ rights
generally or the application of equitable principles in any proceeding, whether
at law or in equity.
(v) Each
of the other Transaction Documents has been duly authorized, executed and
delivered by the Company, the Depositor and the Issuer, as applicable, and,
assuming due authorization, execution and delivery thereof by the other parties
thereto, constitutes the valid and binding agreement of the Company, the
Depositor and the Issuer, as applicable, enforceable against the Company, the
Depositor and the Issuer, as applicable, in accordance with their respective
terms, subject, as to enforcement only, to the effect of bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors’ rights generally or the application of equitable principles in any
proceeding, whether at law or in equity.
(vi) The
Offered Notes have been duly authorized, and when executed and authenticated in
accordance with the Indenture and delivered to and paid for by the Initial
Purchaser in accordance with this Agreement, the Offered Notes will constitute
valid and binding obligations of the Issuer, enforceable against the Issuer in
accordance with their terms, subject, as to enforcement only, to the effect of
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally or the application of
equitable principles in any proceeding, whether at law or in equity, and will be
entitled to the benefits of the Indenture.
(vii) Other
than as set forth in or contemplated by each Memorandum, there are no legal or
governmental proceedings pending to which the Company, the Depositor or the
Issuer is a party or of which any property or assets of the Company, the
Depositor or the Issuer are the subject of which could reasonably be expected to
materially adversely affect the financial position, stockholders’ equity or
results of operations of the Company, the Depositor or the Issuer or on the
performance by the Company, the Depositor or the Issuer of its obligations
hereunder or under the other Transaction Documents; and to the knowledge of the
Company, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
5
(viii) The
execution, delivery and performance of this Agreement and the other Transaction
Documents to which it is a party and the consummation by the Company, the
Depositor and the Issuer and of the transactions contemplated herein and therein
and in all documents relating to the Notes will not result in any breach or
violation of, or constitute a default under, any agreement or instrument to
which the Company, the Depositor or the Issuer is a party or to which any of its
properties or assets are subject, except for such of the foregoing as to which
relevant waivers, consents or amendments have been obtained and are in full
force and effect or which would not reasonably be expected to have a material
adverse effect on the financial position, stockholders’ equity or results of
operations of the Company, the Depositor or the Issuer or on the performance by
the Company, the Depositor or the Issuer of its obligations hereunder or under
the other Transaction Documents, nor will any such action result in a violation
of the organizational documents of the Company, the Depositor or the Issuer or
any applicable law.
(ix) Neither
the Issuer, the Depositor nor the pool of Collateral Obligations is, or after
giving effect to the transactions contemplated by the Transaction Documents will
be, required to be registered as an “investment company” under the 1940
Act.
(x) Assuming
the Initial Purchaser’s representations herein are true and accurate, it is not
necessary in connection with the offer, sale and delivery of the Offered Notes
in the manner contemplated by this Agreement and each Memorandum to register the
Offered Notes under the Securities Act or to qualify the Indenture under the
Trust Indenture Act of 1939, as amended.
(xi) The
Offered Notes satisfy the requirements set forth in Rule 144A(d)(3) under the
Securities Act. As of the Closing Date, the Offered Notes will not be (i) of the
same class as securities listed on a national securities exchange in the United
States that is registered under Section 6 of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), or
(ii) quoted in any “automated inter-dealer quotation system” (as such term is
used in the Exchange Act) in the United States.
(xii) At
the time of execution and delivery of the Master Loan Sale Agreement and after
giving effect to any contemporaneous releases under the GCMF Credit Facility,
the Originator owned the Collateral Obligations to be conveyed by it to the
Depositor on the Closing Date free and clear of all liens, encumbrances, adverse
claims or security interests (“Liens”) other than
Liens permitted by the Transaction Documents, and the Originator had the power
and authority to transfer such Collateral Obligations to the
Depositor.
6
(xiii) At
the time of execution and delivery of the Master Loan Sale Agreement and after
giving effect to the transfer from the Originator described in clause (xii)
above and any contemporaneous releases under the GCMF Credit Facility, the Depositor owned the
Collateral Obligations conveyed to it on the Closing Date free and clear of all
Liens other than Liens permitted by the Transaction Documents, and the Depositor
had the power and authority to transfer such Collateral Obligations to the
Issuer.
(xiv) Upon
the execution and delivery of the Transaction Documents, payment by the Initial
Purchaser for the Offered Notes, delivery to the Initial Purchaser of the
Offered Notes and delivery to the Depositor of the Subordinated Notes, the
Issuer will own the Collateral Obligations conveyed to it on the Closing Date
and the Initial Purchaser will acquire title to the Offered Notes, in each case
free of Liens except such Liens as may be created or granted by the Initial
Purchaser and those permitted in the Transaction Documents.
(xv) No
consent, authorization or order of, or filing or registration with, any court or
governmental agency is required for the issuance and sale of the Offered Notes
or the execution, delivery and performance by the Company, the Depositor or the
Issuer, as applicable, of this Agreement or the other Transaction Documents to
which it is a party, except such consents, approvals, authorizations, filings,
registrations or qualifications as have been obtained or as may be required
under the Securities Act or state securities or blue sky laws or the rules and
regulations of the Financial Industry Regulatory Authority in connection with
the sale and delivery of the Offered Notes in the manner contemplated
herein.
(xvi) The
Collateral Obligations in all material respects have the characteristics
described in the Time of Sale Information and the Final Memorandum.
(xvii) Each
of the representations and warranties of the Company, the Depositor and the
Issuer set forth in each of the other Transaction Documents is true and correct
in all material respects.
(xviii) No
adverse selection procedures were used in selecting the Collateral Obligations
from among the loans that meet the representations and warranties of the Company
contained in the Master Loan Sale Agreement and that are included in the
Assets.
(xix) Neither
the Issuer nor any affiliate (as defined in Rule 501(b) of Regulation D under
the Securities Act (“Regulation D”)) of
the Issuer nor anyone acting on their behalf has, directly or indirectly (except
to or through the Initial Purchaser), sold or offered, or attempted to offer or
sell, or solicited any offers to buy, or otherwise approached or negotiated in
respect of, any of the Offered Notes and neither the Issuer nor any of its
affiliates will do any of the foregoing. As used herein, the terms
“offer” and “sale” have the meanings specified in Section 2(3) of the Securities
Act.
(xx) Neither
the Issuer nor any affiliate (as defined in Rule 501(b) of Regulation D) of the
Issuer has directly, or through any agent, sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of, any security (as defined in
the Securities Act) which is or will be integrated with the sale of the Offered
Notes in a manner that would require the registration under the Securities Act
of the offering contemplated by each Memorandum or engaged in any form of
general solicitation or general advertising in connection with the offering of
the Offered Notes.
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(xxi) With
respect to any Offered Notes subject to the provisions of Regulation S of the
Securities Act, the Issuer has not offered or sold such Offered Notes during the
Distribution Compliance Period to a U.S. person or for the account or benefit of
a U.S. person (other than the Initial Purchaser). For this purpose,
the term “Distribution Compliance Period” and “U.S. person” are defined as such
term is defined in Regulation S.
(xxii) Since
the date of the latest un-audited financial statements of the Company as of
March 31, 2010, there has been no change nor any development or event involving
a prospective change which has had or could reasonably be expected to have a
material adverse change in or effect on (i) the business, operations,
properties, assets, liabilities, stockholders’ equity, earnings, condition
(financial or otherwise), results of operations or management of the Company and
its subsidiaries, considered as one enterprise, whether or not in the ordinary
course of business, or (ii) the ability of the Company to perform its
obligations hereunder or under the other Transaction Documents.
(xxiii) The
Notes and the Transaction Documents conform in all material respects to the
descriptions thereof in the Final Memorandum.
(xxiv) Any
taxes, fees, and other governmental charges in connection with the execution and
delivery of this Agreement and the other Transaction Documents and the
execution, delivery, and sale of the Notes have been or will be paid at or
before the Closing Date.
(xxv) [Reserved].
(xxvi) No
proceeds received by the Company, the Depositor or the Issuer in respect of the
Notes will be used by the Company, the Depositor or the Issuer to acquire any
security in any transaction which is subject to Section 13 or 14 of the Exchange
Act.
(xxvii) (i) To
the extent applicable thereto, each of the Company, the Issuer and their
respective ERISA Affiliates is in compliance in all material respects with ERISA
unless any failure to so comply could not reasonably be expected to have a
material adverse effect and (ii) no lien under Section 303(k) of ERISA or
Section 430(k) of the Code exists on any of the Assets. As used in
this paragraph, the term “ERISA Affiliate”
means, with respect to any Person, a corporation, trade or business that is,
along with such Person, a member of a controlled group (as described in Section
414 of the Code or Section 4001 of ERISA).
(xxviii) The
Company has not paid or agreed to pay to any Person any compensation for
soliciting another Person to purchase any of the Offered Notes (except as
contemplated by this Agreement).
8
(xxix) The
Company has not taken, directly nor indirectly, any action designed to cause or
to result in, or that has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of any Offered Note
or to facilitate the sale or resale of the Offered Notes.
(xxx) On
and immediately after the Closing Date, each of the Company, the Depositor and
the Issuer (after giving effect to the issuance of the Notes and to the other
transactions related thereto as described in the Time of Sale Information and
the Final Memorandum) will be Solvent. As used in this paragraph, the
term “Solvent”
means, with respect to a particular date such Person, that on such date (A) the
present fair market value (or present fair saleable value) of the assets of such
Person is not less than the total amount required to pay the probable
liabilities of such Person on its total existing debts and liabilities
(including contingent liabilities) as they become absolute and matured, (B) such
Person is able to realize upon its assets and pay its debts and other
liabilities, contingent obligations and commitments as they mature and become
due in the normal course of business, (C) assuming the sale of the Notes as
contemplated by this Agreement, Time of Sale Information and the Final
Memorandum, such Person is not incurring debts or liabilities beyond its ability
to pay as such debts and liabilities mature and (D) such Person is not engaged
in any business or transaction, and is not about to engage in any business or
transaction, for which its property would constitute unreasonably small capital
after giving due consideration to the prevailing practice in the industry in
which such Person is engaged. In computing the amount of such
contingent liabilities at any time, it is intended that such liabilities will be
computed at the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
Section
5. Sale of
Offered Notes to the Initial Purchaser.
The sale
of the Offered Notes to the Initial Purchaser will be made without registration
of the Offered Notes under the Securities Act, in reliance upon the exemption
therefrom provided by Section 4(2) of the Securities Act.
(a) The
Company, the Initial Purchaser, the Issuer and the Depositor hereby agree that
the Offered Notes will be offered and sold only in transactions exempt from
registration under the Securities Act. The Company, the Initial
Purchaser, the Issuer and the Depositor will each reasonably believe at the time
of any sale of the Offered Notes by the Issuer through the Initial Purchaser (i)
that either (A) each purchaser of the Offered Notes is (1) a QIB who is a
Qualified Purchaser purchasing for its own account (or for the accounts of QIBs
who are Qualified Purchasers to whom notice has been given that the resale,
pledge or other transfer is being made in reliance on Rule 144A) in transactions
meeting the requirements of Rule 144A, or (2) an Institutional Accredited
Investor who is a Qualified Purchaser who purchases for its own account and
provides the Initial Purchaser with a written certification in substantially the
form attached to the Indenture, or (B) each purchaser is acquiring the Offered
Notes in an offshore transaction meeting the requirements of Regulation S and is
a Qualified Purchaser, and (ii) that the offering of the Offered Notes will
be made in a manner that will enable the offer and sale of the Offered Notes to
be exempt from registration under state securities or Blue Sky laws; and each
such party understands that no action has been taken to permit a public offering
in any jurisdiction where action would be required for such
purpose. The Company, the Initial Purchaser, the Issuer and the
Depositor each further agree not to (i) engage (and represents that it has not
engaged) in any activity that would constitute a public offering of the Offered
Notes within the meaning of Section 4(2) of the Securities Act or
(ii) offer or sell the Offered Notes by (and represents that it has not
engaged in) any form of general solicitation or general advertising (as those
terms are used in Regulation D), including the methods described in Rule 502(c)
of Regulation D, in connection with any offer or sale of the Offered
Notes.
9
(b) The
Initial Purchaser hereby represents and warrants to and agrees with the Company,
that (i) it is a QIB and a Qualified Purchaser and (ii) it will offer the
Offered Notes only (A) to persons who it reasonably believes are QIBs who are
Qualified Purchasers in transactions meeting the requirements of Rule 144A, (B)
to institutional investors who it reasonably believes are Institutional
Accredited Investors who are Qualified Purchasers or (C) to persons it
reasonably believes are Qualified Purchasers in offshore transactions in
accordance with Regulation S. The Initial Purchaser further agrees
that (i) it will deliver to each purchaser of the Offered Notes, at or prior to
the Time of Sale, a copy of the Time of Sale Information, as then amended or
supplemented, and (ii) prior to any sale of the Offered Notes to an
Institutional Accredited Investor that it does not reasonably believe is a QIB
who is a Qualified Purchaser, it will receive from such Institutional Accredited
Investor a written certification in substantially the applicable form attached
to the Indenture.
(c) The
Initial Purchaser hereby represents that it is duly authorized and possesses the
requisite corporate power to enter into this Agreement.
(d) The
Initial Purchaser hereby represents there is no action, suit or proceeding
pending against or, to the knowledge of the Initial Purchaser, threatened
against or affecting, the Initial Purchaser before any court or arbitrator or
any government body, agency, or official which could reasonably be expected to
materially adversely affect the ability of the Initial Purchaser to perform its
obligations under this Agreement.
(e) The
Initial Purchaser hereby represents and agrees that all offers and sales of the
Offered Notes by it to non–United States persons, prior to the expiration of the
Distribution Compliance Period, will be made only in accordance with the
provisions of Rule 903 or Rule 904 of Regulation S and only upon receipt of
certification of beneficial ownership of the securities by a non–U.S. person in
the form provided in the Indenture. For this purpose, the term
“Distribution Compliance Period” and “U.S. person” are defined as such terms are
defined in Regulation S.
(f) The
Initial Purchaser hereby represents that it (i) has not offered or sold, and it
will not offer or sell, any Offered Notes to any Person in the United Kingdom
except to (A) investment professionals as defined in Article 19 of the Financial
Services and Markets Act 2000 (Financial Promotion) Order 2005 (the “Order”) and
investment personnel of the foregoing, (B) persons who fall within any of the
categories of persons described in Articles 49(2)(A) to 49(2)(E) of the Order
(high net worth companies, unincorporated associations, etc.) and investment
personnel of the foregoing and (C) any person to whom it may otherwise lawfully
be made, or otherwise in circumstances that have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of
Section 102B of the Financial Services and Markets Act 2000 (the “FSMA”); (ii) has
complied and will comply with all applicable provisions of the FSMA with respect
to anything done by it in relation to any Offered Notes in, from or otherwise
involving the United Kingdom; and (iii) has only communicated or caused to be
communicated and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within the meaning of
Section 21 of the FSMA) received by it in connection with the issue or sale of
any Offered Notes in circumstances in which Section 21(1) of the FSMA does not
apply to the Issuer, or to persons to whom such communication may otherwise
lawfully be made.
10
(g) In
relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (as defined below) (each, a “Relevant Member
State”), the Initial Purchaser hereby represents and agrees that
effective from and including the date on which the Prospectus Directive is
implemented in that Relevant Member State (the “Relevant Implementation
Date”) it has not made and will not make an offer of the Offered Notes to
the public in that Relevant Member State prior to the publication of a
prospectus in relation to the Offered Notes which has been approved by the
competent authority in that Relevant Member State or, where appropriate,
approved in another Relevant Member State and notified to the competent
authority in that Relevant Member State, all in accordance with the Prospectus
Directive, except that it may, effective from and including the Relevant
Implementation Date, make an offer of the Offered Notes to the public in that
Relevant Member State at any time:
(i) to
legal entities which are authorized or regulated to operate in the financial
markets or, if not so authorized or regulated, whose corporate purpose is solely
to invest in securities:
(ii) to
any legal entity which has two or more of (1) an average of at least 250
employees during the last financial year; (2) a total balance sheet of more than
€43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in
its last annual or consolidated financial statements; or
(iii) in
any other circumstances which do not require the publication by the issuer of a
prospectus pursuant to Article 3 of the Prospectus Directive.
For the
purposes of this Section 5(g), the
expression “offer of Offered Notes to the public” in relation to any Offered
Notes in any Relevant Member State means the communication in any form and by
any means of sufficient information on the terms of the offer and the Offered
Notes so as to enable an investor to decide to purchase or subscribe the Offered
Notes, as the same may be varied in that Member State by any measure
implementing the Prospectus Directive in that Member State and the expression
“Prospectus Directive” means Directive 2003/71/EC and includes any relevant
implementing measure in each Relevant Member State.
11
Section
6. Certain
Agreements of the Company.
The
Company covenants and agrees with the Initial Purchaser as follows:
(a) If,
at any time prior to the 90th day following the Closing Date, any event
involving the Company, the Depositor, the Issuer or, to the knowledge of a
Responsible Officer of the Company, the Collateral Manager shall occur as a
result of which the Final Memorandum (as then amended or supplemented) would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, the Company will immediately notify
the Initial Purchaser and will cause the Issuer to prepare and furnish to the
Initial Purchaser an amendment or supplement to the Final Memorandum that will
correct such statement or omission. The Issuer will not at any time
amend or supplement the Final Memorandum (i) prior to having furnished the
Initial Purchaser with a copy of the proposed form of the amendment or
supplement and giving the Initial Purchaser a reasonable opportunity to review
the same or (ii) except to the extent the Company may determine it or the Issuer
is required to so disclose pursuant to applicable law and after consultation
with the Initial Purchaser (and, in such a circumstance, shall remove all
references to the Initial Purchaser therefrom if so requested by the Initial
Purchaser), in a manner to which the Initial Purchaser or its counsel shall
object.
(b) During
the period referred to in Section 6(a), the
Company will furnish to the Initial Purchaser, without charge, copies of the
Final Memorandum (including all exhibits and documents incorporated by reference
therein), the Transaction Documents, and all amendments or supplements to such
documents, in each case, as soon as reasonably available and in such quantities
as the Initial Purchaser may from time to time reasonably request.
(c) Subject
to compliance with Regulation FD, at all times during the course of the private
placement contemplated hereby and prior to the Closing Date, (i) the Company
will make available to each offeree the Additional Offering Documents and such
information concerning any other relevant matters as it or any of its affiliates
possess or can acquire without unreasonable effort or expense, as determined in
good faith by it or such affiliate, as applicable, (ii) the Company will provide
each offeree the opportunity to ask questions of, and receive answers from, it
concerning the terms and conditions of the offering and to obtain any additional
information, to the extent it or any of its affiliates possess such information
or can acquire it without unreasonable effort or expense (as determined in good
faith by it or such affiliate, as applicable), necessary to verify the accuracy
of the information furnished to the offeree, (iii) the Company will not
publish or disseminate any material in connection with the offering of the
Offered Notes except as contemplated herein or as consented to by the Initial
Purchaser or in connection with the Company’s disclosure obligations under the
Exchange Act, provided that no such disclosure under the Exchange Act would
result in a requirement that the offering of the Notes be registered under §5 of
the Securities Act, (iv) the Company will advise the Initial Purchaser promptly
of the receipt by the Company of any communication from the SEC or any state
securities authority concerning the offering or sale of the Offered Notes,
(v) the Company will advise the Initial Purchaser promptly of the
commencement of any lawsuit or proceeding to which the Company is a party
relating to the offering or sale of the Offered Notes, and (vi) the Company
will advise the Initial Purchaser of the suspension of the qualification of the
Offered Notes for offering or sale in any jurisdiction, or the initiation or
threat of any procedure for any such purpose.
12
(d) Subject
to compliance with Regulation FD, the Company will furnish, upon the written
request of any Noteholder or of any owner of a beneficial interest in a Note,
such information as is specified in paragraph (d)(4) of Rule 144A under the
Securities Act (i) to such Noteholder or beneficial owner, (ii) to a prospective
purchaser of such Note or interest therein who is a QIB and a Qualified
Purchaser designated by such Noteholder or beneficial owner, or (iii) to the
Trustee for delivery to such Noteholder, beneficial owner or prospective
purchaser, in order to permit compliance by such Noteholder or beneficial owner
with Rule 144A in connection with the resale of such Note or beneficial interest
therein by such holder or beneficial owner in reliance on Rule 144A unless, at
the time of such request, the Issuer is subject to the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934 or is exempt from
such reporting requirements pursuant to and in compliance with Rule
12g3-2(b).
(e) Except
as otherwise provided in the Indenture, each Offered Note will contain legends
in the forms set forth in the Final Memorandum.
(f) In
connection with the application to list the Offered Notes on the Irish Stock
Exchange, the Company will furnish from time to time any and all documents,
instruments, information and commercially reasonable undertakings and publish
all advertisements or other material that may be necessary in order to effect
such listing and use commercially reasonable efforts to maintain such listing
until none of such Notes is outstanding or until such time as payment of
principal, interest and any additional amounts (if any) in respect of all such
Notes have been duly provided for, whichever is earlier; provided that if such listing
can no longer be reasonably maintained, the Company will use its commercially
reasonable efforts to obtain and maintain the quotation for, or listing of, such
Notes on such other stock exchange or exchanges in the European Union as the
Initial Purchaser may reasonably request.
(g) Neither
the Issuer nor any of its affiliates or any other Person acting on their behalf
shall engage, in connection with the offer and sale of the Offered Notes, in any
form of general solicitation or general advertising within the meaning of Rule
502(c) of Regulation D under the Securities Act, including, but not limited to,
the following:
(i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar medium or broadcast over television or radio;
and
(ii) any
seminar or meeting whose attendees have been invited by any general solicitation
or general advertising.
(h) The
Issuer shall not solicit any offer to buy from or offer to sell or sell to any
Person any Offered Notes, except through the Initial Purchaser or with the
consent of the Initial Purchaser and/or as otherwise specified in the Indenture
at any time prior to the Closing Date; on or prior to the Closing Date, neither
the Issuer nor any of its affiliates (except for compliance by the Company with
Regulation FD) shall publish or disseminate any material other than the
Additional Offering Documents consented to by the Initial Purchaser, the Time of
Sale Information and the Final Memorandum in connection with the offer or sale
of the Offered Notes as contemplated by this Agreement, unless the Initial
Purchaser shall have consented to the use thereof; if the Issuer or any of its
affiliates makes any press release including “tombstone”
announcements, in connection with the Transaction Documents, the Issuer shall
permit the Initial Purchaser to review and approve such release in
advance.
13
(i) The
Issuer shall not take, or permit or cause any of its affiliates to take, any
action whatsoever which would have the effect of requiring the registration,
under the Securities Act, of the offer or sale of the Offered
Notes.
(j) The
Issuer shall not take, directly or indirectly, any action designed to or which
has constituted or which might reasonably be expected to cause or result, under
the Exchange Act or otherwise, in stabilization or manipulation of the price of
any Offered Note to facilitate the sale or resale of the Offered
Notes.
(k) The
Company shall apply the net proceeds from the sale of the Offered Notes as set
forth in the Final Memorandum under the heading “Use of Proceeds”.
Section
7. Conditions
of the Initial Purchaser Obligations.
The
obligation of the Initial Purchaser to purchase the Offered Notes on the Closing
Date will be subject to the accuracy, in all material respects, of the
representations and warranties of the Company, the Depositor and the Issuer
herein, to the performance, in all material respects, by the Company, the
Depositor and the Issuer of their respective obligations hereunder and to the
following additional conditions precedent:
(a) The
Offered Notes shall have been duly authorized, executed, authenticated,
delivered and issued, the Transaction Documents shall have been duly authorized,
executed and delivered by the respective parties thereto and shall be in full
force and effect, and the documents required to be delivered pursuant to the
Indenture in respect of the Collateral Obligations shall have been delivered to
the Custodian pursuant to and as required by the Transaction
Documents.
(b) The
Initial Purchaser shall have received (I) a certificate, dated as of the Closing
Date, of the Chief Executive Officer or Chief Financial Officer of the Company,
in its individual capacity (and, with respect to the Depositor, in its capacity
as designated manager on behalf of the Depositor and, with respect to the
Issuer, in its capacity as designated manager on behalf of the Issuer), to the
effect that such officer has carefully examined this Agreement, the Final
Memorandum and the Transaction Documents and that, to the best of such officer’s
knowledge (i) since the date information is given in the Final Memorandum,
there has not been any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company, the Depositor or the Issuer whether or not arising in the ordinary
course of business, or the ability of the Company, the Depositor or the Issuer
to perform its obligations hereunder or under the Transaction Documents except
as contemplated by the Final Memorandum, (ii) each of the Company, the Depositor
and the Issuer has complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder and
under the other Transaction Documents, at or prior to the Closing Date,
(iii) the representations and warranties of the Company, the Depositor and
the Issuer in the Transaction Documents are true and correct in all material
respects, as of the Closing Date, as though such representations and warranties
had been made on and as of such date, and (iv) nothing has come to the attention
of such officer that would lead such officer to believe that (A) the Time of
Sale Information, as of the Time of Sale, contained any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and (B) the Final Memorandum, as of its date and as of the
Closing Date, or any Additional Offering Document, as of its respective date,
contained or contains an untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading and (II) a
certificate, dated as of the Closing Date, of a manager of the Collateral
Manager to the effect that such officer has carefully examined the Final
Memorandum and that, to the best of such officer’s knowledge, nothing has come
to the attention of such officer that would lead such officer to believe that
the “Collateral Manager Information” (as defined in the Final Memorandum), as of
the date of the Final Memorandum and as of the Closing Date, contained any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
14
(c) The
Class A Notes shall have been rated no less than “Aaa” and “AAA” by ▇▇▇▇▇’▇ and
S&P, respectively, the Class B Notes shall have been rated no less than
“Aa2” and “AA” by ▇▇▇▇▇’▇ and S&P, respectively, such ratings shall not have
been rescinded, and no public announcement shall have been made by either of
▇▇▇▇▇’▇ or S&P that any ratings of the Offered Notes have been placed under
review.
(d) On
the date of the Final Memorandum, Ernst & Young LLP shall have furnished to
the Initial Purchaser an “agreed upon procedures” letter, dated the date of
delivery thereof, in form and substance satisfactory to the Initial Purchaser,
with respect to certain financial and statistical information contained in the
Final Memorandum.
(e) The
Initial Purchaser shall have received an opinion, dated the Closing Date, of
in-house counsel to the Trustee, in form and substance satisfactory to the
Initial Purchaser.
(f) The
Initial Purchaser shall have received legal opinions of Dechert LLP, counsel to
the Company, the Depositor, the Issuer and the Collateral Manager, (i) with
respect to certain corporate matters with respect to the Company and the
Collateral Manager and certain federal tax, securities law and investment
company matters, in form and substance satisfactory to the Initial Purchaser and
(ii) with respect to certain “true sale” and “non–consolidation” issues in form
and substance satisfactory to the Initial Purchaser.
(g)
The Initial Purchaser shall have
received an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel to the Company, the
Depositor and the Issuer, with respect to certain limited liability company
matters with respect to the Depositor and the Issuer and “perfection issues” in
form and substance satisfactory to the Initial Purchaser.
(h) The
Initial Purchaser shall have received from the Trustee a certificate signed by
one or more duly authorized officers of the Trustee, dated the Closing Date, in
customary form.
(i) The
Company shall have furnished to the Initial Purchaser and its counsel such
further information, certificates and documents as the Initial Purchaser and its
counsel may reasonably have requested, and all proceedings in connection with
the transactions contemplated by this Agreement, the other Transaction Documents
and all documents incident hereto shall be in all material respects reasonably
satisfactory in form and substance to the Initial Purchaser and its
counsel.
15
(j) The
Depositor shall have purchased or otherwise acquired the Subordinated Notes in
accordance with the terms of the Master Loan Sale Agreement.
(k) The
Indenture, the Master Loan Sale Agreement, the Collateral Management Agreement
and all other documents incident hereto and to the other Transaction Documents
shall be reasonably satisfactory in form and substance to the Initial Purchaser
and its counsel.
If any of
the conditions specified in this Section 7 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above shall not
be in all material respects reasonably satisfactory in form and substance to the
Initial Purchaser, this Agreement and all of the Initial Purchaser’s obligations
hereunder may be canceled by the Initial Purchaser at or prior to delivery of
and payment for the Offered Notes. Notice of such cancellation shall
be given to the Company in writing, or by telephone or facsimile confirmed in
writing.
Section
8. Indemnification
and Contribution.
(a) The
Company and the Issuer, jointly and severally (each an “indemnifying party” as
such term is used in this Agreement), shall indemnify and hold harmless the
Initial Purchaser (whether acting as Initial Purchaser or as placement agent
with respect to any of the Offered Notes), its officers, directors, employees,
agents and each person, if any, who controls the Initial Purchaser within the
meaning of either the Securities Act or the Exchange Act and the affiliates of
the Initial Purchaser (each an “indemnified party” as such term is used in this
Agreement) from and against any loss, claim, damage or liability, joint or
several, and any action in respect thereof, to which any indemnified party may
become subject, under the Securities Act or Exchange Act or otherwise, insofar
as such loss, claim, damage, liability or action arises out of, or is based
upon, any untrue statement or alleged untrue statement of a material fact
contained in any Memorandum, any Additional Offering Document or the Time of
Sale Information or arises out of, or is based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances under
which they were made not misleading, and shall reimburse any such indemnified
party for any legal and other expenses reasonably incurred by such indemnified
party in investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action; provided,
however,
that the indemnifying parties shall not be liable to any such indemnified party
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in the Time of Sale Information,
any Memorandum or any Additional Offering Document in reliance upon and in
conformity with written information furnished to the Company by such indemnified
party specifically for inclusion therein; provided,
further,
that the foregoing indemnity shall not inure to the benefit of any indemnified
party from whom the person asserting any such loss, claim, damage or liability
purchased the Offered Notes which are the subject thereof if the indemnified
party sold Offered Notes to or placed Offered Notes with the person alleging
such loss, claim, damage or liability without sending or giving a copy of the
Time of Sale Information at or prior to the confirmation of the sale of the
Offered Notes, if the Company shall have previously furnished copies thereof to
such indemnified party and the loss, claim, damage or liability of such person
results from an untrue statement or omission of a material fact contained in the
Preliminary Memorandum which was corrected in the Time of Sale
Information. The foregoing indemnity is in addition to any liability
that the indemnifying parties may otherwise have to any indemnified
party. The indemnifying parties acknowledge that the statements set
forth in the Time of Sale Information and the Final Memorandum (x) under the
caption: “Plan of Distribution” (but solely the second, fourth, seventh, ninth,
eleventh and twelfth paragraphs under such caption) of the Final Memorandum and
(y) relating to ▇▇▇▇▇ Fargo Securities, LLC in the last sentence of the first
full paragraph on page iii of the Final Memorandum under the heading “Important
Information Regarding Offers and Sales of the Offered Securities” constitute the
only written information furnished to the Company by or on behalf of the
indemnified parties specifically for inclusion in the Time of Sale Information,
any Memorandum or any Additional Offering Document.
16
(b) Promptly
after receipt by an indemnified party under this Section 8 of notice
of any claim or the commencement of any action, the indemnified party shall, if
a claim in respect thereof is to be made against an indemnifying party under
this Section 8,
notify such indemnifying party in writing of the claim or commencement of that
action, provided,
however,
that the failure to notify an indemnifying party shall not relieve such
indemnifying party from any liability that it may have to an indemnified party
under this Section
8, except to the extent that such indemnifying party has been materially
prejudiced by such failure and, provided,
further,
that the failure to notify an indemnifying party shall not relieve such
indemnifying party from any liability that it may have to an indemnified party
otherwise than under this Section
8. If any such claim or action shall be brought against an
indemnified party, and it shall notify an indemnifying party thereof, such
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party. After notice from any such indemnifying party or
parties to the indemnified party or parties of its or their election to assume
the defense of such claim or action, any such indemnifying party or parties
shall not be liable to the indemnified party under this Section 8 for any
legal or other expenses subsequently incurred by the indemnified party or
parties in connection with the defense thereof; provided
that the indemnified party seeking such indemnity shall have the right to employ
counsel to represent it and any other indemnified party who may be subject to
liability arising out of any claim or action in respect of which indemnity may
be sought by an indemnified party against an indemnifying party under this Section 8, if (i) in
the reasonable judgment of such indemnified party, there may be legal defenses
available to it and any other indemnified party different from or in addition to
those available to the Company or the Issuer, or there is a conflict of interest
between it and any other indemnified party, on one hand, and the Company or the
Issuer, on the other, or (ii) the Company or the Issuer shall fail to
select counsel reasonably satisfactory to such indemnified party or parties, and
in such event the fees and expenses of such separate counsel shall be paid by
the Company and the Issuer. In no event shall the Company or the
Issuer be liable for the fees and expenses of more than one separate firm of
attorneys for all indemnified parties in connection with any other action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement (i) does not
include a statement as to, or admission of, fault, culpability or a failure to
act by or on behalf of any such indemnified party, and (ii) includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
17
(c) If
the indemnification provided for in Section 8 shall for
any reason be unavailable to an indemnified party under subsection 8(a)
hereof in respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Company and the
Issuer on the one hand (without duplication) and the Initial Purchaser on the
other from the offering and sale of the Offered Notes or (ii) if the allocation
provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Issuer on the one hand and the
Initial Purchaser on the other with respect to the statements or omissions that
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Issuer on the one hand (without
duplication) and the Initial Purchaser on the other with respect to such
offering shall be deemed to be in the same proportion as the total net proceeds
from the offering and sale of the Offered Notes (before deducting expenses)
received by the Company and the Issuer bear (without duplication) to the total
fees actually received by the Initial Purchaser with respect to such offering
and sale. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company and the Issuer or by the Initial Purchaser, the intent of the parties
and their relative knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company, the Issuer and
the Initial Purchaser agree that it would not be just and equitable if
contributions pursuant to this subsection 8(c) were
to be determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this subsection 8(c) shall
be deemed to include, for purposes of this subsection 8(c), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection 8(c), the
Initial Purchaser shall not be required to contribute any amount in excess of
the aggregate fee actually paid to the Initial Purchaser with respect to the
offering of the Offered Notes. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(d) The
indemnity agreements contained in this Section 8 shall
survive the delivery of the Offered Notes, and the provisions of this Section 8 shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of any indemnified
party.
18
Section
9. Termination.
This
Agreement shall be subject to termination in the absolute discretion of the
Initial Purchaser, by notice given to the Company prior to delivery of and
payment for the Offered Notes, if prior to such time (i) trading in securities
generally on the New York Stock Exchange or the Irish Stock Exchange shall have
been suspended or materially limited or any setting of minimum prices for
trading on such exchange shall have occurred, (ii) there shall have been, since
the respective dates as of which information is given in the Time of Sale
Information or the Final Memorandum, any material adverse change in the
condition, financial or otherwise, or in the properties (including, without
limitation, the Collateral Obligations) or the earnings, business affairs or
business prospects of the Company, the Depositor, the Issuer or the Collateral
Manager, whether or not arising in the ordinary course of business; (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either U.S. federal or New York State authorities, or (iv) there
shall have occurred any material outbreak or escalation of hostilities or other
calamity or crises the effect of which on the financial markets of the United
States is such as to make it, in the reasonable judgment of the Initial
Purchaser, impracticable or inadvisable to market the Offered Notes on the terms
and in the manner contemplated by each Memorandum as amended or
supplemented.
Section
10. Severability
Clause.
Any part,
provision, representation, or warranty of this Agreement which is prohibited or
is held to be void or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof.
Section
11. Notices.
All
demands, notices and communications hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by overnight
mail, certified mail or registered mail, postage prepaid and effective only upon
receipt and if sent to the Initial Purchaser, will be delivered to ▇▇▇▇▇ Fargo
Securities, LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Asset-Backed Finance – ▇▇▇▇▇ Capital
BDC 2010-1 LLC; or if sent to the Company, the Depositor or the Issuer will be
delivered to such party c/▇ ▇▇▇▇▇ Capital BDC, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇ Re: ▇▇▇▇▇ Capital BDC
2010-1 LLC, facsimile (▇▇▇) ▇▇▇-▇▇▇▇.
Section
12. Representations
and Indemnities to Survive.
The
respective agreements, representations, warranties, indemnities and other
statements of the Company, the Depositor, the Issuer and their respective
officers and of the Initial Purchaser set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of the Initial Purchaser, the Company, the Depositor, the
Issuer or any indemnified party referred to in Section 8 of this
Agreement, and will survive delivery of and payment for the Offered
Notes.
19
Section
13. Successors.
This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors by merger, consolidation or acquisition of their
assets substantially as an entity and each indemnified party referred to in
Section 8 of
this Agreement and, except as specifically set forth herein, no other person
will have any right or obligation hereunder.
Section
14. Applicable
Law.
(a) THIS
AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT OTHERWISE WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES).
(b) EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY REQUIREMENTS OF
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT. EACH PARTY HERETO (I) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION
14(b).
(c) ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE
COURTS OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO CONSENTS, FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, TO THE NON–EXCLUSIVE JURISDICTION OF THOSE
COURTS. EACH SUCH PARTY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO.
Section
15. Counterparts,
Etc.
This
Agreement supersedes all prior or contemporaneous agreements and understandings
relating to the subject matter hereof. Neither this Agreement nor any
term hereof may be changed, waived, discharged or terminated except by a writing
signed by the party against whom enforcement of such change, waiver, discharge
or termination is sought. This Agreement may be signed in any number
of counterparts each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
20
Section
16. [Reserved].
Section
17. No
Petition; Limited Recourse.
(a) The
Initial Purchaser covenants and agrees that, prior to the date that is one year
and one day (or such longer preference period as shall then be in effect) after
the payment in full of each Class of Notes rated by any Rating Agency, it will
not institute against the Issuer or the Depositor or join any other Person in
instituting against the Issuer or the Depositor any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceedings
under the laws of the United States or any state of the United
States.
(b) Notwithstanding
anything to the contrary herein, the obligations of the Issuer and the Depositor
hereunder are limited recourse obligations of the Issuer and the Depositor,
respectively, payable solely from the Assets securing the Notes, and following
the exhaustion of such Assets, any claims of the Initial Purchaser hereunder
against the Issuer or the Depositor shall be extinguished. All
payments by the Issuer or the Depositor to the Initial Purchaser hereunder shall
be made subject to and in accordance with the Priority of Payments set forth in
the Indenture.
(c) This
Section 17 will
survive the termination of this Agreement.
Section
18. Arm’s-Length
Transaction; Other Transactions.
(a) Each
of the Company, the Depositor and the Issuer acknowledges and agrees that (i)
the purchase and sale of the Offered Notes pursuant to this Agreement, including
the determination of the offering price of the Offered Notes and any related
discounts and commissions, is an arm’s-length commercial transaction between the
Issuer, on the one hand, and the Initial Purchaser, on the other hand, (ii) in
connection with the offering contemplated hereby and the process leading to such
transaction, the Initial Purchaser is and has been acting solely as a principal
and is not an agent or fiduciary of the Issuer, the Company or the Depositor or
any of their respective equity holders, creditors, employees or any other party,
(iii) the Initial Purchaser has not assumed and will not assume an advisory or
fiduciary responsibility in favor of the Issuer, the Company or the Depositor
with respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether the Initial Purchaser has advised or is currently
advising any of the Issuer, the Company or the Depositor on other matters) and
the Initial Purchaser has no obligation to any of the Issuer, the Company or the
Depositor with respect to the offering contemplated hereby, except the
obligations expressly set forth in this Agreement, and (iv) the Initial
Purchaser has not provided any legal, accounting, regulatory or tax advice with
respect to the offering contemplated hereby and each of the Issuer, the Company
and the Depositor has consulted its own legal, accounting, regulatory and tax
advisors to the extent it deemed appropriate.
21
(b) Each
of the Company, the Depositor and the Issuer acknowledges and agrees that the
Initial Purchaser and its Affiliates may presently have and may in the future
have investment and commercial banking, trust and other relationships with
parties other than the Company, the Depositor and the Issuer, which parties may
have interests with respect to the purchase and sale of the Offered
Notes. Although the Initial Purchaser in the course of such other
relationships may acquire information about the purchase and sale of the Offered
Notes, potential purchasers of the Offered Notes or such other parties, the
Initial Purchaser shall not have any obligation to disclose such information to
any of the Company, the Depositor or the Issuer. Furthermore, each of
the Company, the Depositor and the Issuer acknowledges that the Initial
Purchaser may have fiduciary or other relationships whereby the Initial
Purchaser may exercise voting power over securities of various persons, which
securities may from time to time include securities of any of the Company, the
Depositor or the Issuer or their respective Affiliates or of potential
purchasers. Each of the Company, the Depositor and the Issuer
acknowledges that the Initial Purchaser may exercise such powers and otherwise
perform any functions in connection with such fiduciary or other relationships
without regard to its relationship to the Company, the Depositor or the Issuer
hereunder.
[REST
OF PAGE INTENTIONALLY LEFT BLANK]
22
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to the undersigned a counterpart hereof, whereupon this letter and
your acceptance shall represent a binding agreement among the Company, the
Depositor, the Issuer and the Initial Purchaser.
|
Very
truly yours,
|
||
|
▇▇▇▇▇
CAPITAL BDC, INC.
|
||
|
By:
|
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
|
Name:
|
▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
|
Title:
|
Chief Executive Officer | |
|
▇▇▇▇▇
CAPITAL BDC 2010-1 HOLDINGS LLC
|
||
|
By:
|
▇▇▇▇▇
Capital BDC, Inc., its designated manager
|
|
|
By:
|
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
|
Name:
|
▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
|
Title:
|
Chief Executive Officer | |
|
▇▇▇▇▇
CAPITAL BDC 2010-1 LLC
|
||
|
By:
|
▇▇▇▇▇
Capital BDC 2010-1 Holdings LLC, its designated manager
|
|
|
By:
|
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
|
Name:
|
▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
|
Title:
|
Manager | |
▇▇▇▇▇
Capital BDC 2010-1 LLC
S-1
|
The
foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
|
||
|
▇▇▇▇▇ FARGO SECURITIES,
LLC,
|
||
|
as
the Initial Purchaser
|
||
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |
|
Name:
|
▇▇▇▇▇ ▇▇▇▇▇▇ | |
|
Title:
|
Director | |
S-2
SCHEDULE
I
|
Class of Notes
|
Principal Amount
|
|||
|
A
|
$ | 174,000,000 | ||
|
B
|
$ | 10,000,000 | ||
SCHEDULE
II
TIME OF
SALE INFORMATION
▇▇▇▇▇
Capital BDC 2010-1 LLC **Priced** 144A/Reg S
|
CLS
|
SIZE
|
WAL
|
RATING
|
COUPON
|
PRICE
|
||||||||
|
A
|
$ | 174,500,000 |
[____]
yrs
|
Aaa,
AAA
|
LIBOR
+ 2.40%
|
100 | % | ||||||
|
B
|
$ | 10,000,000 |
[____]
yrs
|
Aa2,
AA
|
LIBOR
+ 2.40%
|
100 | % | ||||||