Ex. 10.2
SALE AND CONTRIBUTION AGREEMENT
THIS SALE AND CONTRIBUTION AGREEMENT dated as of October 27, 2021 (this “Agreement”), is entered into by and between Trinity Capital Inc. as seller (the “Seller”) and TrinCap Funding, LLC, as purchaser (the “Purchaser”).
WITNESSETH:
WHEREAS, on date hereof and from time to time, (i) pursuant to this Agreement, the Seller intends to contribute, sell, transfer, assign and convey (“Transfer”, and the terms “Transfers” and “Transferred” shall have corollary meanings) and Purchaser intends to purchase and acquire, among other things, certain Loans and other Related Property (“Assets”) meeting the eligibility criteria set forth in the definition of Eligible Loan and (ii) pursuant to that certain Credit Agreement, dated as of the date hereof (as it may be amended, restated, replaced, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Purchaser, as borrower (in such capacity, the “Borrower”), Seller, as servicer (in such capacity, together with its permitted successors and assigns, the “Servicer”), the financial institutions from time to time parties thereto (each such financial institution, a “Lender” and collectively, the “Lenders”), KeyBank National Association, as administrative agent for the Secured Parties (in such capacity, the “Agent”) and syndication agent, and Wells Fargo Bank, National Association, not in its individual capacity, but solely as collateral custodian (in such capacity, the “Custodian”) and as paying agent, Purchaser intends to pledge, among other things, such Assets acquired hereunder to secure the Advances made by the Lenders; and
WHEREAS, the Seller may, and in certain circumstances will be required to, repurchase or substitute any Loan previously acquired by Purchaser hereunder and pledged to the Agent pursuant to the Credit Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements herein contained, the parties hereto hereby agree as follows:
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The characterization of the Seller as “debtor” and Purchaser as “secured party” in any financing statement required hereunder is solely for protective purposes and shall in no way be construed as being contrary to the intent of the parties that this transaction be treated as a sale to Purchaser of the Seller’s entire right, title and interest in and to the Conveyed Property. The Seller shall, and does hereby authorize Purchaser, the Servicer and the Agent to, file such financing statements (and continuation statements with respect to such financing statements when applicable) as may be necessary to perfect the Purchaser’s security interest under the UCC.
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(i)This Agreement constitutes a security agreement within the meaning of Section 9-102(a)(73) of the UCC as in effect from time to time in the State of New York.
(ii)the Conveyed Property is comprised of “instruments”, “general intangibles”, “deposit accounts”, “investment property”, “chattel paper” and “proceeds” (each as defined in the applicable UCC) and such other categories of collateral under the applicable UCC as to which the Seller has complied with its obligations under this Section 5(m).
(iii)The Seller has received all consents and approvals required by the terms of any Loan to the sale, contribution and granting of a security interest in the Conveyed Property hereunder to the Purchaser.
(iv)Upon the delivery to the Collateral Custodian of all Conveyed Property constituting “instruments”, “chattel paper” and “certificated securities” (as defined in the UCC as in effect from time to time in the jurisdiction where the Collateral Custodian’s corporate trust office is located), the crediting of all Conveyed Property that constitutes “financial assets” (as defined in the UCC as in effect from time to time in the State of New York) to an account and the filing of the financing statements in the jurisdiction in which the Seller is located, such security interest shall be a valid and first priority perfected security interest in all of the Conveyed Property in that portion of the Conveyed Property in which a security interest may be created under Article 9 of the UCC as in effect from time to time in the State of New York.
(v)All original executed copies of each underlying promissory note (or, in the case of Equipment Finance Loans, the original executed copies of each underlying Contract) that constitute or evidence each Loan has been or, subject to
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the delivery requirements contained herein and in the Credit Agreement, will be delivered to the Collateral Custodian.
(vi)None of the underlying promissory notes (or, in the case of Equipment Finance Loans, the underlying Contracts) that constitute or evidence the Loans has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Agent on behalf of the Secured Parties.
(vii)With respect to Collateral that constitutes a “certificated security,” such certificated security has been delivered to the Collateral Custodian on behalf of the Agent and, if in registered form, has been specially Indorsed to the Agent or in blank by an effective Indorsement or has been registered in the name of the Agent upon original issue or registration of transfer by the Purchaser of such certificated security.
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(f)The Seller (x) shall not change its name or jurisdiction of organization, without 30 days’ prior written notice to the Purchaser and Agent and (y) shall not move, or consent to the Collateral Custodian moving, any original Loan Documents without thirty (30) days’ prior written notice to the Purchaser and the Agent and (z) will promptly take all actions required of each relevant jurisdiction in order to continue the first priority perfected security interest of the Purchaser (except for Permitted Liens) in all Conveyed Property, and such other actions as the Purchaser or the Agent may reasonably request, including but not limited to delivery of an Opinion of Counsel.
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[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.
Trinity Capital Inc.,
as Seller
By: /s/ Sarah Stanton
Name: Sarah Stanton
Title: General Counsel
TrinCap Funding, LLC
By: Trinity Capital Inc., its sole and managing member
By: /s/ Sarah Stanton
Name: Sarah Stanton
Title: General Counsel
Signature Page to Purchaser Sale and Contribution Agreement
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SCHEDULE I
SCHEDULE OF ASSETS
(See attached)
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EXHIBIT A
SCHEDULE OF INITIAL CONVEYED ASSETS
(See attached)
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EXHIBIT B
ADDITIONAL ASSET SUPPLEMENT
This ADDITIONAL ASSET SUPPLEMENT (this “Supplement”) dated as of ___________ is by and between Trinity Capital Inc. (the “Seller”), and TrinCap Funding, LLC (“Purchaser”), pursuant to the Agreement referred to below.
WITNESSETH:
WHEREAS, the Seller and Purchaser are parties to that certain Sale and Contribution Agreement dated as of October 27, 2021 (as such agreement may have been, or may from time to time be, further amended, supplemented or otherwise modified, the “Agreement”);
WHEREAS, pursuant to the Agreement, the Seller wishes to designate Additional Conveyed Assets to be included on the Schedule of Assets, and the Seller wishes to Transfer the Additional Conveyed Assets and the other Additional Conveyed Property to Purchaser pursuant to this Supplement; and
WHEREAS, Purchaser wishes to purchase and acquire such Additional Conveyed Assets and the other Additional Conveyed Property subject to the terms and conditions hereof. NOW, THEREFORE, the Seller and Purchaser hereby agree as follows:
1.Defined Terms. All capitalized terms used herein shall have the meanings ascribed to them in the Agreement unless otherwise defined herein.
“Additional Conveyed Assets” shall have the meaning set forth in Section 3 hereto.
“Additional Conveyed Property” shall have the meaning set forth in Section 3 hereto.
“Cut-Off Date” shall mean [_].
“Transfer Date” shall mean the date hereof.
2.Designation of Additional Conveyed Assets. The Seller delivers herewith the Supplemental Schedule containing a true and complete list of the Additional Conveyed Assets Transferred hereunder. Such Supplemental Schedule is incorporated into and made part of this Supplement and shall supplement the Schedule of Assets.
3.Sale of Additional Assets.
The Seller does hereby Transfer to Purchaser, all of its right, title and interest in and to, and obligations under, (i) the Loans listed in the Supplemental Schedule attached hereto (the “Additional Conveyed Assets”), and all monies due or to become due in payment of the Additional Conveyed Assets on and after the Cut-Off Date, (ii) any Related Property securing the Additional Conveyed Assets including all Proceeds from any sale or other disposition of such Related Property, (iii) the Loan Documents relating to the Additional Conveyed Assets, (iv) all Collections and all other payments made or to be made in the future with respect to the Additional Conveyed Assets, including such payments under any guarantee or similar credit enhancement with respect
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to such Additional Conveyed Assets, (v) the Seller’s rights as a lender with respect to any deposit or banking accounts in which Collections are deposited from time to time, (vi) all other agreements or arrangements of whatever character (including, without limitation, any warrants or other equity arrangements executed or issued by an Obligor with respect to such Additional Conveyed Assets) from time to time supporting or securing payment for such Additional Conveyed Assets, (vii) all documents relating to the applicable Loan File and other records relating to the Additional Conveyed Assets and the Related Property, and (viii) all income, payments, proceeds and other benefits of the foregoing, including, but not limited to, all accounts, cash and currency, chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, general intangibles, instruments, commercial tort claims, deposit accounts, inventory, investment property, letter of credit rights, software, supporting obligations, accessions and other property consisting of, arising out of, or related to the foregoing, including all Proceeds of the foregoing (collectively, the “Additional Conveyed Property”).
In connection with the foregoing sale and if necessary, the Seller agrees to record and file one or more financing statements (and continuation statements or other amendments with respect to such financing statements when applicable) with respect to the Additional Conveyed Property meeting the requirements of applicable law in such manner and in such jurisdictions as are necessary to perfect the sale of the Additional Conveyed Property to Purchaser, and to deliver a file-stamped copy of such financing statements and continuation statements (or other amendments) or other evidence of such filing to Purchaser.
In connection with the foregoing sale, the Seller further agrees, on or prior to the date of this Supplement, to cause the portions of its computer files relating to the Additional Conveyed Property Transferred on such date to Purchaser to be clearly and unambiguously marked to indicate that each such Additional Conveyed Property has been Transferred on such date to Purchaser pursuant to the Agreement and this Supplement.
4.Acceptance by Purchaser. Purchaser hereby acknowledges that, prior to or simultaneously with the execution and delivery of this Supplement, the Seller delivered to Purchaser the Supplemental Schedule described in Section 2 of this Supplement with respect to all Additional Conveyed Assets to be Transferred hereunder.
5.Representations and Warranties of the Seller. The Seller hereby represents and warrants to Purchaser on the Transfer Date that each representation and warranty to be made by it on the Transfer Date pursuant to the Agreement is true and correct, and that each such representation and warranty is hereby incorporated herein by reference as though fully set out in this Supplement.
6.Ratification of the Agreement. The Agreement is hereby ratified, and all references to the Agreement shall be deemed from and after the Transfer Date to be references to the Agreement as supplemented and amended by this Supplement. Except as expressly amended hereby, all the representations, warranties, terms, covenants and conditions of the Agreement shall remain unamended and shall continue to be, and shall remain, in full force and effect in accordance with its terms and except as expressly provided herein shall not constitute or be deemed to constitute a waiver of compliance with or consent to non-compliance with any term or provision of the Agreement.
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7.Counterparts. This Supplement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Delivery of an executed counterpart of this Supplement by facsimile or other electronic transmission (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart hereof and deemed an original.
8.GOVERNING LAW. THIS SUPPLEMENT SHALL, AS PERMITTED BY SECTION 5 1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Supplement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
TRINITY CAPITAL INC.
By: Name: Title: Address: Telephone: Facsimile:
TRINCAP FUNDING, LLC
By: Trinity Capital Inc., its sole and managing member
By: Name: Title: Address: Telephone: Facsimile:
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