exhibit101-membershipint






                                                     Exhibit 10.1                                                                     MEMBERSHIP INTEREST PURCHASE AGREEMENT                     by and among          MEDLEY CAPITAL CORPORATION,    GREAT AMERICAN LIFE INSURANCE COMPANY,        MCC SENIOR LOAN STRATEGY JV I LLC                          and                  GEMS FUND 5, L.P.                  ___________________            DATED AS OF OCTOBER 8, 2020                                                          





 






                                TABLE OF CONTENTS                                                                                                                      Page                                                                                    ARTICLE I PURCHASE AND SALE. ...........................................................................................1        1.1   Purchase and Sale; Purchase Price. ......................................................................... 1        1.2   True Sale ................................................................................................................. 2        1.3   Withholding ............................................................................................................ 2   ARTICLE II CLOSING; CLOSING DELIVERIES .......................................................................2        2.1   Closing .................................................................................................................... 2        2.2   Closing Deliveries. At the Closing, ........................................................................ 2        2.3   Allocation of Purchase Price; Tax Matters. ............................................................ 4   ARTICLE III REPRESENTATIONS AND WARRANTIES REGARDING THE  SELLERS .........................................................................................................................................7        3.1   Corporate Organization of Medley. ........................................................................ 7        3.2   Authority; No Violation .......................................................................................... 8        3.3   Consents and Approvals. ........................................................................................ 8        3.4   Title to Membership Interests ................................................................................. 9        3.5   Solvency .................................................................................................................. 9        3.6   Independent Investigation ....................................................................................... 9        3.7   Representations of GALIC ..................................................................................... 9   ARTICLE IV REPRESENTATIONS AND WARRANTIES REGARDING THE  ACQUIRED COMPANIES ...........................................................................................................10         4.1   Organization of the Company; Subsidiaries. ........................................................ 10        4.2   Capitalization ........................................................................................................ 11         4.3   Authority; No Violation ........................................................................................ 12         4.4   Consents and Approvals. ...................................................................................... 12         4.5   Financial Statements; Undisclosed Liabilities. ..................................................... 13         4.6   Broker’s Fees ........................................................................................................ 14         4.7   Absence of Certain Changes or Events. ................................................................ 14         4.8   Legal Proceedings ................................................................................................. 15         4.9   Company Loans .................................................................................................... 15         4.10  Company-Owned Equity Interests ........................................................................ 16         4.11  Company Assets; Title to Assets. ......................................................................... 16         4.12  Compliance with Applicable Law. ....................................................................... 17         4.13  Books and Records; Officers and Managers; Bank Accounts .............................. 18                                           i   





 






      4.14  Taxes ..................................................................................................................... 18         4.15  No Change of Control Payments .......................................................................... 20         4.16  Disclaimers ........................................................................................................... 20    ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER ...................................21         5.1   Corporate Organization ......................................................................................... 21         5.2   Authority; No Violation ........................................................................................ 21         5.3   Consents and Approvals ....................................................................................... 22         5.4   Broker’s Fees ........................................................................................................ 22         5.5   No Arrangements with Management or Stockholders .......................................... 22         5.6   Status of Buyer ...................................................................................................... 22         5.7   Investigation .......................................................................................................... 22    ARTICLE VI ADDITIONAL AGREEMENTS ............................................................................23         6.1   Additional Agreements ......................................................................................... 23         6.2   Further Assurances................................................................................................ 23         6.3   Confidentiality. ..................................................................................................... 23         6.4   Waiver ................................................................................................................... 24    ARTICLE VII INDEMNITY ........................................................................................................24         7.1   Survival ................................................................................................................. 24         7.2   Indemnification ..................................................................................................... 25         7.3   Defense of Claims ................................................................................................. 26         7.4   Adjustment ............................................................................................................ 27         7.5   Limitations ............................................................................................................ 27         7.6   Waiver ................................................................................................................... 29    ARTICLE VIII DEFINED TERMS ..............................................................................................29    ARTICLE IX GENERAL PROVISIONS .....................................................................................38         9.1   Expenses ............................................................................................................... 38         9.2   Notices .................................................................................................................. 38         9.3   Interpretation ......................................................................................................... 39         9.4   Counterparts; Delivery by Facsimile or PDF........................................................ 40         9.5   Entire Agreement .................................................................................................. 40         9.6   Governing Law; Jurisdiction................................................................................. 40         9.7   Waiver of Jury Trial .............................................................................................. 41         9.8   Publicity ................................................................................................................ 41         9.9   Assignment; Third Party Beneficiaries ................................................................. 41         9.10  Remedies. .............................................................................................................. 41                                           ii   





 






      9.11  Amendments; Waivers .......................................................................................... 42         9.12  Severability ........................................................................................................... 42         9.13  Schedules .............................................................................................................. 42         9.14  Representation by Counsel ................................................................................... 42                                       EXHIBITS   Exhibit A           Purchase Price Calculation  Exhibit B           Form of Purchase Price Certificate  Exhibit C           Form of Membership Interest Assignment  Exhibit D           Form of Resignation Letter  Exhibit E           Payoff Letter                                      APPENDIX    Appendix  A             Payment Information and Pro Rata Portion                                          iii   





 






                  MEMBERSHIP INTEREST PURCHASE AGREEMENT         This  MEMBERSHIP INTEREST PURCHASE AGREEMENT           , dated as of October  8,  2020  (this  “ Agreement ”),  is  entered  into  by  and  among  Medley  Capital  Corporation,  a  Delaware  corporation  (“ Medley ”),  Great  American  Life  Insurance  Company,  an  Ohio  corporation (“ GALIC ”) (Medley and GALIC, each, a “ Seller ” and collectively, the “ Sellers ”),  MCC Senior Loan Strategy JV I LLC, a Delaware limited liability company (the “ Company ”),  and GEMS Fund 5, L.P., a Delaware limited partnership (“ Buyer ”).                                     RECITALS:         WHEREAS    ,  Sellers  collectively  own  all  of  the  issued  and  outstanding  membership  interests (the “ Membership Interests ”) in the Company;          WHEREAS    ,  Medley  owns  87.5%  of  the  Membership  Interests  in the  Company  (the  “Medley Interests ”) and GALIC owns 12.5% of the Membership Interests in the Company (the  “GALIC Interests ”);          WHEREAS    , Sellers wish to sell to Buyer, and Buyer wishes to purchase from Sellers,  the Membership Interests, subject to the terms and conditions set forth herein; and         NOW,  THEREFORE     ,  in  consideration  of  the  mutual  covenants,  representations,  warranties  and  agreements  contained  in  this  Agreement,  and  other  good  and  valuable  consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be  legally bound hereby, the parties agree as follows:                                     ARTICLE I                              PURCHASE AND SALE.          1.1   Purchase and Sale; Purchase Price.               (a)   Purchase and Sale. Upon the terms and subject to the conditions of this  Agreement, at the Closing, each Seller shall sell to Buyer, and Buyer shall purchase from each  Seller, all of each Seller’s right, title and interest in and to its Membership Interests, free and  clear of all Liens, for the consideration specified in Section 1.1(b), as apportioned among the  Sellers as set forth on Appendix A hereto (such portion is hereinafter referred to as each Seller’s  “Pro Rata Portion ”) and as described in Section 1.1(c).                (b)   Purchase Price. The aggregate consideration for the Membership Interests  shall be an amount in cash equal to $ 145,317,978.54 (the “ Purchase Price ”), which consists of  the components set forth in, and has been calculated in accordance with, Exhibit A hereto.  As of  the  Closing,  a  certificate,  in  the  form  attached  hereto  as  Exhibit  B,  executed  by  the  Chief  Financial  Officer  of  Medley  (the  “ Purchase  Price  Certificate ”)  has  been  delivered  to  Buyer,  certifying that Medley’s calculation of the Purchase Price is in accordance with the terms of this  Agreement, including the calculations set forth on Exhibit A hereto, together  with reasonable  supporting documentation for each such calculation.                                             7   





 






            (c)   Closing Payments.  The following payments shall be made by Buyer at the  Closing:                      (i)   The  Buyer  shall  pay  to  each  Seller  an  amount  equal to  such  Seller’s  Pro  Rata  Portion  of  the  Purchase  Price  as set  forth  on  Appendix  A  in  cash  by  wire  transfer of immediately available funds to the account designated by such Seller on Appendix A;  and                      (ii)  The  Buyer  shall  repay,  or  cause  to  be  repaid,  on  behalf  of  the  Acquired Companies, all amounts necessary to discharge the DB Credit Facility by wire transfer  of immediately available funds in accordance with the Payoff Letter.          1.2   True  Sale.  The  parties  hereto  expressly  intend  that  the  purchase  and  sale  transaction  contemplated  by  this  Agreement  shall  constitute  an  absolute  conveyance  of  the  Membership Interests to Buyer without recourse. In furtherance of the foregoing, at the Closing,  Sellers shall update their respective books and records to reflect the fact that the Membership  Interests have been sold and that Sellers no longer retain any ownership interest therein.         1.3   Withholding. Buyer and any other applicable withholding agent will be entitled to  deduct  and  withhold  from  any  amounts  payable  pursuant  to  this  Agreement  (and  any  other  agreement  entered  into  in  connection  with  the  Contemplated  Transactions)  any  withholding  Taxes or other  amounts required under the Code or any  Applicable  Law  to  be  deducted  and  withheld. To the extent any such amounts are so deducted and withheld and properly paid over to  the appropriate Governmental Entity or other appropriate Person, such amounts will be treated  for all purposes of this Agreement (and any other agreement entered into in connection with the  Contemplated Transactions) as having been paid to the Sellers or any other Person in respect of  which such deduction and withholding was made.                                     ARTICLE II                         CLOSING; CLOSING DELIVERIES          2.1   Closing. On the terms and subject to the conditions set forth in this Agreement,  the closing of the Contemplated Transactions (the “Closing ”) shall take place remotely via the  electronic or other exchange of documents and signature pages on the date hereof (the “ Closing  Date ”)  simultaneously  with  the  execution  of  this  Agreement  by  the  parties  hereto.   At  the  Closing, the parties hereto shall execute and deliver the items referred to in Section 2.2.          2.2   Closing Deliveries. At the Closing,               (a)   Medley shall deliver to Buyer the following:                     (i)   an instrument of assignment in the form of Exhibit C hereto (each,  a “ Membership Interest Assignment ”) executed by Medley with respect to the Medley Interests;                       (ii)  all  authorizations,  consents,  filings,  approvals  and  Permits   necessary  to  permit  the  Sellers  to  perform  the  transactions  contemplated  by  the  Transaction   Documents, including any Consents, in each case, in form and substance reasonably satisfactory   to Buyer;                                          2   





 






                  (iii)  evidence that all authorized signatories on accounts, lockboxes and   other depositories of funds of the Acquired Companies are only Persons designated by Buyer;                      (iv)  a  certificate  executed  by  a  duly  authorized  officer  of  Medley,   reasonably satisfactory to Buyer, dated as of the Closing Date, certifying that attached thereto are   true  and  complete  copies  of  (i)  the  resolutions  of the  board  of  directors  of  Medley  and  the   members  of  the  Company  authorizing  the  execution,  delivery  and  performance  of  the   Transaction Documents to which Medley and the Company are a party and the consummation of   the Contemplated Transactions, (ii) a certificate of good standing (or equivalent document) for   the  Acquired  Companies  issued  by  the  applicable  secretary  of  state  of  its  jurisdiction  or   organization  as  of  a  recent  date,  (iii)  a  copy  of  the  certificate  of  formation  (or  equivalent   document) of the Acquired Companies, certified by the secretary of state of its jurisdiction of   organization,  and  (iv)  a  copy  of  the  operating  agreement  (or  equivalent  document)  of  the   Acquired Companies, in each case, as amended to date;                     (v)   written  resignations  in  the  form  of  Exhibit  D  of  each  manager,  officer, and member of the board of directors or managers of the Acquired Companies, effective  from and after the Closing Date;                      (vi)  a duly completed and executed Form W-9;                       (vii)  evidence reasonably satisfactory to Buyer of the termination of all  Indebtedness of the Acquired Companies and of the termination and release of all Liens on any  assets of the Acquired Companies or the Membership Interests and of  the termination of any  UCC  financing  statements,  including  the  payoff  letter  attached  as  Exhibit  E  (the  “Payoff  Letter”),  which  evidences  the  payoff  and  termination  of  all  Indebtedness  of  the  Acquired  Companies with respect to the DB Credit Facility;                       (viii)  written evidence, in form and substance reasonably satisfactory to   Buyer, of the termination of that certain Administrative Services Agreement, dated as of March   27, 2015, by and between Medley Capital LLC, a Delaware limited liability company and the   Company, including a waiver of the sixty (60) day written notice requirement set forth in Section   7 therein;                      (ix)  the Purchase Price Certificate; and                      (x)   such other documents as may be reasonably required to effect the   intentions of the parties, executed by Medley and/or the Company.                (b)   GALIC shall deliver to Buyer the following:                      (i)   a  Membership  Interest  Assignment  executed  by  GALIC with   respect to the GALIC Interests; and                      (ii)  a duly completed and executed Form W-9.                (c)   Buyer or, without relieving Buyer of its obligations under this Agreement,   its Affiliated designees, shall deliver to the Sellers:                                          3   





 






                  (i)   the  Purchase  Price  payable  to  the  Sellers  in  accordance  with   Appendix A to the accounts set forth therein; and                     (ii)  such other documents as may be reasonably required to effect the  intentions of the parties, executed by Buyer.         2.3   Allocation of Purchase Price; Tax Matters.               (a)   Allocation of Purchase Price.                      (i)   The parties hereto shall allocate the Purchase Price (and any other  amount or item treated as consideration for U.S. federal income Tax purposes) in accordance  with  the  rules  under  Section  1060  of  the  Code  and  the  Treasury  Regulations  promulgated  thereunder, as applicable, pursuant to an allocation schedule (an “ Allocation  Schedule ”) to be  prepared  by  Buyer.   Buyer  shall  prepare  and  deliver to Sellers an initial Allocation Schedule  within thirty (30) days after the Closing Date.                      (ii)  If,  within  twenty  (20)  days  following  the  delivery of  the  initial  Allocation  Schedule,  neither  Seller  notifies  Buyer of  its  disagreement  with  the  Allocation  Schedule,  the  Allocation  Schedule  shall  be  final  and  binding  on  all  parties.   If,  within  such  twenty (20)-day period, either Seller notifies Buyer, in writing, that it disputes any item reflected  in  the  initial  Allocation  Schedule,  Buyer  and  the  Sellers  shall  use  commercially  reasonable  efforts to settle the dispute with respect to such comments promptly.  If Buyer and Sellers have  not resolved such dispute within thirty (30) days of Buyer’s receipt of such Seller’s comments,  Buyer and Sellers shall jointly retain an  Independent Accountant to resolve disputed items in  accordance with this Agreement and,  absent fraud or manifest error, any determination by the  Independent Accountant shall be final and binding on the parties.  The costs, fees and expenses  of  the  Independent  Accountant  shall  be  borne  equally  by  each  Seller  asserting  a  dispute  and  Buyer or by Medley and Buyer in the case of any dispute asserted by Buyer. Buyer and Sellers  hereby covenant and agree to (i) be bound by the final Allocation Schedule for all income Tax  purposes, (ii) prepare  and file all Tax Returns on a  basis  consistent  with  the  final  Allocation  Schedule and (iii) not take any position on any Tax  Return,  before  any  Governmental  Entity  charged  with  the  collection  of  any  Tax,  or  in  any  judicial  Proceeding  that  is  in  any  way  inconsistent  with  the  terms  of  the  final  Allocation  Schedule  unless  required  to  do  so  by  Applicable Law.                      (iii)  If  any  indemnification  payment  is  made  pursuant  to this   Agreement or any other adjustment to the Purchase Price for U.S. federal income tax purposes   occurs,  Buyer  shall  promptly  revise  the  final  Allocation  Schedule  to  take  into  account  such   payment or adjustment in a manner consistent with the principles of Section 1060 of the Code   and the regulations thereunder (and any corresponding provision of state, local or foreign Tax   Law, as appropriate).                    (b)   Tax Returns.  Medley shall prepare, or cause to be prepared, all income  Tax Returns required to be filed by the Acquired Companies after the Closing Date with respect  to a Pre-Closing Tax Period (each, a “ Seller Prepared Tax Return ”).  Buyer shall prepare, or  cause to be prepared, all other Tax Returns required to be filed by the Acquired Companies after                                          4   





 






the  Closing  Date  with  respect  to  a  Pre-Closing  Tax Period  (each,  a  “ Buyer  Prepared  Tax  Return ”). All Tax Returns prepared pursuant to this Section 2.3(b) shall be prepared in a manner  consistent with past practice unless otherwise required by Applicable Law or this Agreement.   The  Sellers  and  Buyer  agree  that  the  methodology  set  forth  in  Section  2.3(c)  will,  where  applicable, be used for preparing all Tax Returns for Straddle Periods.  The preparing party shall  deliver any such Tax Return to each non-preparing party for its review and comment (together  with schedules, statements and supporting documentation) at least thirty (30) days prior to the  due date (including extensions) of such Tax Return (or,  if  any  such  Tax  Return  is  due  within  thirty (30) days of the Closing Date, as soon as reasonably  practicable  following  the  Closing  Date to permit the non-preparing party a reasonable period of time to review).  If a non-preparing  party objects to any item on any such Tax Return, such non-preparing party shall, within ten (10)  days after delivery of such Tax Return, notify the preparing party, in writing, that it so objects.   With respect to a Seller Prepared Tax Return, Sellers shall consider in good faith any objections  raised  by  Buyer  within  ten  (10)  days  after  delivery  of  such  Tax  Return  to  Buyer;  provided,  however,  to  the  extent  that  (i)  such  Seller  Prepared  Tax  Return  is  not  prepared  in  a  manner  consistent with past practice (unless otherwise required by Applicable Law or this Agreement)  and (ii) any item on such Seller Prepared Tax Return or any Tax position taken with respect to  such  Seller  Prepared  Tax  Return  is  reasonably  expected  to  prejudice  Buyer’s  Tax  position  in  respect  of  any  Post-Closing  Tax  Period,  the  parties  agree  to  resolve  any  such  dispute  in  accordance with the procedure set forth in this Section 2.3(b). With respect to a Buyer Prepared  Tax Return and a Seller Prepared Tax Return that is under dispute pursuant to the immediately  foregoing proviso, (A) if a notice of objection shall be duly delivered, Buyer and the Sellers shall  negotiate  in  good  faith  and  use  their  reasonable  best  efforts  to  resolve  such  items  and  (B)  if  Buyer and the Sellers are unable to reach such agreement within ten (10) days after receipt of  such notice, the disputed items shall be resolved by the Independent Accountant in accordance  with Section 2.3(a)(ii).  The Sellers shall pay to Buyer an amount equal to any Taxes shown to be  due and payable on any Tax Return prepared pursuant to this Section 2.3(b) for any Straddle  Period, to the extent of the amount that is allocated to the Pre-Closing Tax Period as determined  pursuant to Section 2.3(c) upon the later of (x) two (2) days before the due date (taking into  account extensions) for the payment of any such Tax and (y) two (2) days following the date  upon  which  the  Independent  Accountant  resolves  all applicable  disputes  with  respect  thereto.  The preparation and filing of any Tax Return of the Acquired Companies that does not relate to a  Pre-Closing Tax Period shall be exclusively within the control of Buyer.                (c)   Straddle Period.   In the  case of Taxes that are payable with respect to a  Straddle Period, the portion of any such Taxes that are treated as Pre-Closing Taxes for purposes  of this Agreement shall be:                      (i)   in the case of Taxes (A) based upon, or related to, income, receipts,   profits,  wages,  capital  or  net  worth;  (B)  imposed  in  connection  with  the  sale,  transfer  or   assignment of property or (C) required to be withheld, deemed equal to the amount which would   be payable if the Tax year ended with the Closing Date, provided that exemptions, allowances or   deductions that are calculated on an annual basis (including, but not limited to, depreciation and   amortization deductions) shall be allocated between the period ending on the Closing Date and   the period after the Closing Date in proportion to the number of days in each period; and                                           5   





 






                  (ii)  in  the  case  of  Taxes  other  than  those  specified  under  clause  (i)   above, deemed to be the amount of such Taxes for the entire period multiplied by a fraction the   numerator of which is the number of days in the period  ending on the  Closing Date  and the   denominator of which is the number of days in the entire period.               (d)   Cooperation  on  Tax  Matters.   Buyer,  the  Acquired  Companies  and  the  Sellers shall use commercially reasonable efforts to cooperate, as and to the extent reasonably  requested by each other, in connection with the preparation and filing of Tax Returns pursuant to  this Agreement and any action with respect to Taxes related to Tax periods beginning before the  Closing Date.  Such cooperation shall include the retention and (upon any other party’s request)  the provision of records and information that are reasonably  relevant  to  any  such  Tax  Return  preparation and any such action, and making employees available on a mutually convenient basis  to provide additional information and explanation of any material provided hereunder.               (e)   Tax Contests.  Buyer  agrees to  give written notice to  the  Sellers  of  the  receipt of any written notice by any Acquired Company or Buyer which involves the assertion of  any  claim,  or  the  commencement  of  any  action,  relating  to  Taxes,  in  respect  of  which  an  indemnity may be sought by a Buyer Indemnified Party pursuant to Article VII (a “Tax Claim”),  as promptly as is reasonably practicable but in any event no later than ten (10) Business Days  after  receiving  the  written  notice  of  such  Tax  Claim.  Failure to provide timely notice to the  Sellers  pursuant  to  this  Section  2.3(e)  shall  not  affect  Buyer  Indemnified  Parties’  right  to  indemnification  hereunder,  except  to  the  extent  the  Sellers  are  actually  prejudiced  by  such  failure.  Either of the Sellers, at its election, may control the conduct of such Tax Claim (at the  cost of the Sellers); provided, however, that (i) the contest or resolution of any underlying issue  of such Tax Claim would not reasonably be expected to have a material and adverse effect on  Buyer for any subsequent Tax periods, in which case Buyer (or its agent) shall be entitled to  participate  in  the  defense  of  such  Tax  Claim  and  to  employ  counsel  of  its  choice  for  such  purpose, the fees and expenses of which separate counsel shall be borne solely by Buyer; and (ii)  the Sellers shall provide Buyer with a timely and reasonably detailed account of each stage of a  Tax Claim in which Buyer does not participate, and obtain the prior written consent of Buyer  (which consent shall not be unreasonably conditioned, withheld or delayed) before entering into  any settlement of a Tax Claim or ceasing to defend such Tax Claim.  In the event (i) that neither  Seller elects to control, or (ii) of any action relating to Taxes that would reasonably be expected  not to give rise to a Tax Claim, the conduct of any such Tax Claim or action relating to Taxes, as  applicable, shall be exclusively within the control of Buyer.                (f)   Transfer Taxes.  All Transfer Taxes shall be paid when due fifty percent  (50%) by the Sellers and fifty percent (50%) by Buyer.  The expense of filing all necessary Tax  Returns and other documentation with respect to all such Transfer Taxes shall be similarly borne  fifty  percent  (50%)  by  Buyer  and  fifty  percent  (50%)  by  the  Sellers.   Buyer  shall  file  all  necessary Tax Returns and other documentation with respect  to  Transfer  Taxes  (except  to the  extent  such  Tax  Returns  are  required  by  Applicable Law  to  be  filed  by  the  Sellers),  and  the  Sellers agree to cooperate with Buyer in the filing of any such Tax Returns, including promptly  supplying  any  information  in  their  possession  that is  reasonably  necessary  to  complete  such  returns.  The parties shall cooperate in good faith to minimize the amount of any such Transfer  Taxes to the fullest extent possible under Applicable Laws.                                          6   





 






            (g)   Tax  Characterization.   The  parties  agree  that  (i)  the  sale  of  the  Membership Interests shall, for U.S. federal, state, and local income Tax purposes, be treated as  a purchase and sale of the Membership Interests described in Situation 2 of IRS Revenue Ruling  99-6, 1999-1 C.B. 432, and will be treated from the perspective of the Sellers as a sale of the  Membership Interests and from Buyer’s perspective as an asset acquisition, and (ii) the Company  will  terminate  for  purposes  of  Section  708  of  the  Code  as  a  result  of  the  transactions  contemplated  by  this  Agreement.   The  parties  agree to  file  (and  to  cause  their  respective  Affiliates to file) their U.S. federal income Tax Returns (and state, local or foreign income Tax  Returns  where  applicable)  in  all  respects  and  for  all  purposes  consistent  with  such  intended  treatment, unless otherwise required by Applicable Law.  The parties further agree not to take  (and to cause their respective Affiliates not to take) any position, whether in any Tax Return,  audit,  examination,  claim,  adjustment,  litigation  or  other  Proceeding  or  action  with  respect  to  U.S.  federal  income  Tax  (and  state,  local  or  foreign  income  Tax  where  applicable),  which  is  inconsistent with such intended treatment, unless otherwise required by Applicable Law.               (h)   Post-Closing Returns and Elections.  Without the prior written consent of  Buyer, and subject to Section 2.3(g), unless otherwise required by Applicable Law, the Sellers  (and, prior to the Closing, the Company, its Affiliates and their respective Representatives) shall  not,  to  the  extent  it  may  affect  any  Acquired  Company,  make,  change  or  rescind  any  Tax  election, change or adopt any annual Tax accounting period, change or adopt any method of Tax  accounting,  file  any  amended  Tax  Return  or  take  any  position  on  any  Tax  Return,  file  any  voluntary disclosure agreement with any Tax authority,  enter  into  any  “closing  agreement”  as  described in Section 7121 of the Code (or any corresponding or similar provision of state, local  or foreign income Tax Law), settle or compromise any action relating to Taxes, surrender any  right to a refund of Taxes or waive or extend the statute of limitations with respect to any Tax or  Tax Return or take any action, or enter into any other transaction, in each case that would have  the effect of increasing the Tax Liability of Buyer or the Acquired Companies in respect of any  Post-Closing Tax Period.               (i)   Tax Refunds.  Any refunds of Taxes of any of the Acquired Companies  with respect to any Pre-Closing Tax Period shall be for the account of the Sellers, and Buyer  shall pay over to Sellers any such refunds within twenty (20) Business Days after receipt thereof.                                     ARTICLE III         REPRESENTATIONS AND WARRANTIES REGARDING THE SELLERS          Except  as  disclosed  in  the  Seller  Disclosure  Schedule,  (a)  with  respect  to  Sections  3.1  through 3.6, Medley, solely as to itself and not as to any other Seller,  and (b) with respect to  Section 3.7, GALIC, solely as to itself and not as to any other Seller, represents and warrants to  Buyer as follows:         3.1   Corporate Organization of Medley.               (a)   Medley is a corporation duly incorporated, validly existing  and  in  good   standing under the laws of the state of its incorporation. Medley has all requisite corporate power   and authority to own or lease all of its properties and assets and to carry on its business as it is   now being conducted.                                          7   





 






            (b)   Medley is duly licensed or qualified to do business in each jurisdiction in  which the nature of the business conducted by it or the character or location of the properties and  assets owned or leased by it makes such licensing or qualification necessary, except where the  failure to be so licensed or qualified would not, individually or in the aggregate, have a Material  Adverse Effect on Medley.               (c)   Medley  is  not  in  material  default  under  or  in  material  violation  of  any  provision of its Organizational Document.         3.2   Authority; No Violation.                (a)   Medley has full corporate power and authority to execute and deliver the  Transaction Documents to which it is a party and to consummate the Contemplated Transactions.  The  execution  and  delivery  of  the  Transaction  Documents  to  which  it  is  a  party  and  the  consummation  of  the  Contemplated  Transactions  have been  duly  and  validly  authorized  and  approved by the board of directors of Medley. No other  corporate  proceedings  on  the  part  of  Medley are necessary to approve the Contemplated Transactions. This Agreement has been duly  and validly executed and delivered by Medley and (assuming due authorization, execution and  delivery by Buyer) constitutes the valid and binding obligation of Medley, enforceable against  Medley  in  accordance  with  its  terms,  except  as  may be  limited  by  bankruptcy,  insolvency,  fraudulent transfer, moratorium, reorganization or similar laws of general applicability relating to  or  affecting  the  rights  of  creditors  generally  and subject  to  general  principles  of  equity  (the  “Enforceability Exception ”).               (b)   Neither  the  execution  and  delivery  of  any  Transaction  Document  by   Medley nor the consummation by Medley of the Contemplated Transactions, nor compliance by   Medley with any of the terms or provisions of the Transaction Documents to which it is a party,   will (i) violate or conflict with any provision of the Organizational Documents of Medley, or (ii)   except as would not, individually or in the aggregate, be reasonably expected to be material to   Medley (A) violate any Applicable Law or Order applicable to Medley or any of its Subsidiaries,   properties or assets, or (B) violate, conflict with, result in a breach of any provision of or the loss   of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both,   would  constitute  a  default)  under,  result  in  the  termination  of  or  a  right  of  termination  or   cancellation under, accelerate the performance required by, or result in the creation or imposition   of any Lien upon any of the properties or assets of Medley or any of its Subsidiaries under any of   the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license,   lease, franchise, agreement or other Contract, instrument or obligation to which Medley or any of   their  respective  Subsidiaries  is  a  party  or  by  which  any  of  them  or  any  of  their  respective   properties or assets is bound.          3.3   Consents and Approvals.               (a)   No  consents,  qualifications,  license,  order,  authorizations,  approvals,  or  exemptions  from,  or  notices  to,  or  filings  or  registrations  with,  any  Governmental  Entity  are  necessary  in  connection  with  the  execution  and  delivery  by  Medley  of  the  Transaction  Documents  to  which  it  is  a  party  or  the  consummation  by  Medley  of  the  Contemplated  Transactions except for those that have been obtained as of the Closing Date.                                          8   





 






            (b)   No  consents  or  approvals  of,  or  notices  to,  any  Person  (other  than  a  Governmental Entity) are necessary in connection with the execution and delivery by Medley of  any  Transaction  Document  to  which  it  is  a  party  or the  consummation  by  Medley  of  the  Contemplated Transactions except for those that have been obtained as of the Closing Date.           3.4   Title  to  Membership  Interests.   Medley  owns,  beneficially  and  of  record,  the  Medley  Interests,  free  and  clear  of  any  Lien  (other  than  as  provided  in  the  Organizational  Documents of the Company provided to Buyer prior to the date hereof).  Upon transfer of the  Medley Interests to Buyer at the Closing, good and valid title to the Medley Interests will pass to  Buyer, free and clear of any Liens.         3.5   Solvency.  Medley and each of its Subsidiaries is Solvent immediately prior to the  Closing and, after giving effect to the Contemplated Transactions, immediately after the Closing  will be Solvent.  No transfer of property is being made and no obligation is being incurred in  connection with the Contemplated Transactions with the intent to hinder, delay or defraud either  present or future creditors of Medley or any of its Subsidiaries.           3.6   Independent Investigation.  Medley acknowledges and agrees that in making its  decision  to  enter  into  this  Agreement  and  the  consummate  the  Contemplated  Transactions,  Medley  has  relied  solely  upon  its  own  investigation,  review  and  analysis,  and  except  for  the  representations and warranties of Buyer in Article V and the Transaction Documents, none of  Buyer or its respective Representatives makes any representation or warranty, either express or  implied.         3.7   Representations of GALIC.  GALIC is a corporation duly incorporated,  validly  existing and in good standing under the laws of the state of its incorporation. GALIC has full  corporate power and authority to execute and deliver the Transaction Documents to which it is a  party  and  to  consummate  the  Contemplated  Transactions.  The  execution  and  delivery  of  the  Transaction  Documents  to  which  it  is  a  party  and  the  consummation  of  the  Contemplated  Transactions have been duly and validly authorized and approved by the board of directors of  GALIC.  GALIC  owns,  beneficially  and  of  record,  the GALIC  Interests,  free  and  clear  of  any  Lien  (other  than  as  provided  in  the  Organizational Documents  of  the  Company  provided  to  Buyer prior to the date hereof).  Upon transfer of the GALIC Interests to Buyer at the Closing,  good and valid title to the GALIC Interests will pass to Buyer, free and clear of any Liens.                                                    9   





 






                                  ARTICLE IV        REPRESENTATIONS AND WARRANTIES REGARDING THE ACQUIRED                                   COMPANIES         Except  as  disclosed  in  the  Seller  Disclosure  Schedule,  Medley  hereby  represents  and  warrants to Buyer as follows:         4.1   Organization of the Company; Subsidiaries.               (a)   The  Company  is  a  limited  liability  company  duly  organized,  validly  existing and in good standing under the laws of the  State  of  Delaware.  The  Company  has  all  requisite limited liability company power and authority to own or lease all of its properties and  assets and to carry on its business as it is now being conducted.               (b)   The  Company  is  duly  licensed  or  qualified  to  do  business  as  a  foreign  limited liability company and is in good standing (where  such  concept  is  recognized)  in  each  jurisdiction in which the nature of the business conducted by it or the character or location of the  properties  and  assets  owned  or  leased  by  it  makes  such  licensing  or  qualification  necessary,  except where the failure to be so licensed or qualified would not, individually or in the aggregate,  have a Material Adverse Effect on the Company.               (c)   True, complete and correct copies of the Organizational Documents of the  Company  have  previously  been  made  available  to  Buyer,  and  the  Company  is  not  in  default  under or in violation of any provision of its Organizational Documents.               (d)   The Company does not own, or has never owned, any Subsidiaries other  than  (i)  MCC  JV  SPV  Funding  I  LLC,  a  Delaware  limited  liability  company  and  direct  Subsidiary  of  the  Company  (“ MCC  SPV ”),  and  (ii)  MCC  JV  Investment  Holdings  LLC,  a  Delaware  limited  liability  company  and  direct  Subsidiary  of  MCC  SPV  (“ MCC  Holdings ”).   Except as set forth in the foregoing sentence, neither MCC Holdings nor MCC SPV owns, or has  ever owned, any Subsidiaries.  100% of the issued and outstanding Equity Interests of MCC SPV  are owned by the Company free and clear of any Liens and 100% of the issued and outstanding  Equity Interests of MCC Holdings are owned by MCC SPV free and clear of any Liens, other  than Liens granted under the DB Credit Facility and released immediately prior to the Closing.   Each of MCC Holdings and MCC SPV (i) is duly organized and validly existing and in good  standing under the laws of the State of Delaware, (ii) has the requisite limited liability company  or other organizational power and authority to own or lease all of its properties and assets and to  carry on its business as it is now being conducted and (iii) is duly licensed or qualified to do  business and is in good standing (where such concept is recognized) in each jurisdiction in which  the nature of the business conducted by it or the character or location of the properties and assets  owned or leased by it makes such licensing or qualification necessary, except where the failure to  be so licensed or qualified would not, individually or in the aggregate, have a Material Adverse  Effect  on  the  Acquired  Companies.   True,  complete  and  correct  copies  of  the  Organizational  Documents of MCC Holdings and MCC SPV have previously been made available to Buyer, and  neither MCC Holdings nor MCC SPV is in default under or in violation of any provision of its  Organizational Documents.                                           10   





 






      4.2   Capitalization.                (a)   The  Medley  Interests  constitute  87.5%  of  the  issued  and  outstanding   Equity Interests of the Company and, assuming the accuracy of the representation of GALIC in   Section 3.7, the GALIC Interests constitute 12.5% of the issued and outstanding Equity Interests  of the Company, in each case, as of but before giving effect to the Closing.  All such Equity  Interests (i) have been duly authorized and validly issued, (ii) were not issued in violation of any  preemptive  or  other  similar  rights,  (iii)  were  not issued  in  violation  of  the  Organizational  Documents of the Company or any other Contract to which a Seller or the Company is a party,  and (iv) were issued in compliance with all Applicable Laws.  None of the Membership Interests  is represented by certificates.                 (b)   All of the Equity Interests of MCC Holdings and MCC SPV (i) have been   duly authorized and validly issued, (ii) were not issued in violation of any preemptive or other   similar rights, (iii) were not issued in violation of the Organizational Documents of such entity or   any other Contract to which an Acquired Company is a party, and (iv) were issued in compliance   with all Applicable Laws.  None of the Equity  Interests of MCC Holdings and MCC SPV is   represented by certificates.                 (c)   Except  as  set  forth  in  Sections  4.2(a)  and  (b),  there  are  no  issued  and  outstanding (i) Equity Interests in the Acquired Companies, (ii) securities, bonds, debentures or  Indebtedness  of  an  Acquired  Company  convertible  into  or  exercisable  or  exchangeable  for  Equity Interests in an Acquired Company, (iii) options, warrants or other rights or agreements,  commitments or understandings of  any kind to  acquire from an  Acquired Company, or other  obligations of Sellers or the Acquired Companies to issue, transfer, sell, repurchase or redeem  any Equity Interests of or in an Acquired Company, (iv) voting trusts, proxies or other similar  agreements or understandings to which Sellers, an Acquired Company is a party or by which  Sellers, an Acquired Company is bound with respect to the voting of any Equity Interests in an  Acquired Company, or (v) contractual obligations or commitments of any character restricting  the  transfer  of,  or  requiring  the  registration  for sale  of,  any  Equity  Interests  in  an  Acquired  Company,  except,  in  the  case  of  the  foregoing  clauses  (iv)  and  (v),  as  set  forth  in  the  Organizational  Documents  of  the  Company.   There  are  no  outstanding  obligations  of  an  Acquired  Company  to  repurchase,  redeem  or  otherwise  acquire  any  Equity  Interests  of  an  Acquired Company.                (d)   No  Acquired  Company  is  a  guarantor  for  any  Liability  or  obligation  (including Indebtedness) of any other Person and no asset of any Acquired Company is subject  to  any  Lien  in  respect  therefor.   None  of  the  Acquired  Companies  has  any  Indebtedness  outstanding.               (e)   Since  its  respective  formation,  none  of  the  Acquired  Companies  has   engaged in any business activities or conducted  any  operations  other  than  in  connection  with   acquiring and owning the Company Loans and Company-Owned Equity Interests.                (f)   Since  October  2,  2020,  no  Acquired  Company  has  made  any  dividend,  distribution or other payment of cash or other property to any Seller or its Affiliates.  The Cash                                          11   





 






and Cash Equivalents is an amount no less than the amount of cash and cash equivalents set forth  on the Purchase Price Certificate as of October 2, 2020.           4.3   Authority; No Violation.                (a)   The Company has full limited liability company power and  authority to  execute  and  deliver  the  Transaction  Documents  to  which it is a party and to consummate the  Contemplated Transactions. The execution and delivery of the Transaction Documents to which  it is a party and the consummation of the Contemplated Transactions have been duly and validly  authorized and approved by the board of managers of the Company and each of its members. No  other limited liability company proceedings on the part of the Company are necessary to approve  the  Contemplated  Transactions.  This  Agreement  has  been  duly  and  validly  executed  and  delivered by the Company and (assuming due authorization, execution and delivery by Buyer)  constitutes the valid and binding obligation of the Company, enforceable against the Company in  accordance with its terms, subject to the Enforceability Exception.               (b)   Neither  the  execution  and  delivery  of  any  Transaction Document by the  Company  nor  the  consummation  by  the  Company  of  the Contemplated  Transactions,  nor  compliance by the Company with any of the terms or provisions of the Transaction Documents  to  which  it  is  a  party,  will  (i)  violate  or  conflict  with  any  provision  of  the  Organizational  Documents of the Company, or (ii) except as would not,  individually  or  in  the  aggregate,  be  reasonably  expected  to  be  material  to  the  Company  (A)  violate  any  Applicable  Law  or  Order  applicable to an Acquired Company or any of their respective properties or assets, or (B) violate,  conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a  default (or an event which, with notice or lapse of  time,  or  both,  would  constitute  a  default)  under, result in the termination of or a right of termination or cancellation under, accelerate the  performance  required  by,  or  result  in  the  creation or imposition of any  Lien upon any of the  respective properties or  assets of an Acquired Company under any of the terms, conditions or  provisions  of  any  note,  bond,  mortgage,  indenture, deed  of  trust,  license,  lease,  franchise,  agreement or other Contract, instrument or obligation to which an Acquired Company is a party  or by which any of them or any of their respective properties or assets is bound.         4.4   Consents and Approvals.               (a)   Except  as  has  been  obtained  by  Sellers  as  of  the  Closing  Date,  no   consents, qualifications, license, order, authorizations, approvals, or exemptions from, or notices   to, or filings or registrations with, any Governmental Entity are necessary in connection with the   execution and delivery by the Company of the Transaction Documents or the consummation by   the Company of the Contemplated Transactions.                (b)   Except  for  matters  covered  in  the  immediately  preceding  Section  4.4(a)  and for consents required under the DB Credit Facility, no consents or approvals of, or notices  to, any Person are necessary in connection with the execution and delivery by the Company of  any Transaction Document to which they are a party or the consummation by the Company of  the Contemplated Transactions.                                            12   





 






      4.5   Financial Statements; Undisclosed Liabilities.               (a)   Medley  has  provided  to  Buyer  accurate  and  complete copies  of  the  Acquired Companies’ (i) consolidated unaudited balance sheet as of June 30, 2020, consolidated  income statement for the nine-month period ended June 30, 2020, and schedule of investments as  of  June  30,  2020  (the  “ Interim  Financial  Statements ”)  and  (ii)  schedule  of  investments  and  consolidated  audited  balance  sheet  as  of  and  income  statement  for  the  fiscal  year  ended  September 30, 2019.  Except as set forth in Section 4.5 of the Seller Disclosure Schedule, each of  the foregoing financial statements (including in all cases the notes thereto, if any) (collectively,  the “ Financial Statements ”) (i) have been prepared in accordance with the books and records of  the  Acquired  Companies  (which  are  accurate  and  complete  in  all  material  respects),  (ii)  fairly  present in all material respects the Acquired Companies’ consolidated results of operations, cash  flows,  changes  in  members’  equity  and  consolidated financial  position  of  the  Acquired  Companies for the respective fiscal periods or as of the respective dates therein set forth (subject  in the case of unaudited statements to recurring year-end audit adjustments normal in nature and  amount),  and  (iii)  have  been  prepared  in  accordance  with  GAAP.   The  Acquired  Companies  maintain, and have maintained for all periods reflected in the Financial Statements, proper and  adequate internal accounting controls that provide assurance that (x) transactions are recorded as  necessary  to  permit  accurate  preparation  of  its  Financial  Statements  and  to  maintain  accurate  accountability for its assets; (y) the reporting of its assets is compared with existing assets at  regular  intervals;  and  (z)  accounts,  notes  and  other  receivables  and  payables  are  recorded  accurately, and proper and adequate procedures are implemented to effect the collection thereof  on  a  current  and  timely  basis.   None  of  the  Sellers,  Acquired  Companies  or  to  Medley’s  Knowledge,  any  Representative  of  an  Acquired  Company  has  received  or  otherwise  had  or  obtained knowledge of any material complaint, allegation, assertion or claim, whether written or  oral, regarding the accounting or auditing practices, procedures, methodologies or methods of an  Acquired  Company  or  their  respective  internal  accounting  controls,  including  any  material  complaint, allegation, assertion or claim that an Acquired Company has engaged in questionable  accounting or auditing practices.  No independent public accountant of a Seller or an Acquired  Company has resigned (or informed such party that it intends to resign) or been dismissed as  independent  public  accountants  of  a  Seller  or  an  Acquired  Company  as  a  result  of  or  in  connection with any disagreements with either Seller or an Acquired Company on a matter of  accounting principles or practices, financial statement disclosure or auditing scope or procedure.               (b)   No  Acquired  Company  has  any  Liability  (whether  absolute,  accrued,   contingent  or  otherwise  and  whether  due  or  to  become  due),  except  for  (i)  those  Liabilities   reflected or reserved against (in accordance with GAAP) in the Interim Financial Statements, (ii)   Liabilities incurred in a commercially reasonable manner, and in the ordinary course of business   consistent with past practice, since the date of the Interim Financial Statements, which are not,   individually or in the aggregate, in excess of $250,000, none of which results from, arises out of,   or relates to any breach or violation of, or default under, a Contract or Applicable Law and (iii)   those  funding  obligations  set  forth  in  Section  4.9(a)  of  the  Seller  Disclosure  Schedule.   Notwithstanding the foregoing, no Acquired Company (i) has any Liability to any Person with  respect to any management fee or other accrued expense; (ii) is a party to any Contract that will  be in effect immediately following the Closing, other than the Company Loan Documents, the  Equity Governing Documents, and the Transaction Documents to which the Company is a party;                                         13   





 






or (iii) has any Liability to any Person with respect to the matters set forth on Section 4.5(b)(iii)  of the Seller Disclosure Schedule.          4.6   Broker’s  Fees.  Except  for  the  retention  of  and  fees payable to Houlihan  Lokey  Capital, Inc., none of the Sellers or the Acquired Companies has utilized any broker, finder or  financial advisor or incurred any liability for any broker’s fees, commissions or finder’s fees in  connection with the Contemplated Transactions.          4.7   Absence of Certain Changes or Events.                (a)   Except as set forth on Section 4.7(a) of the Seller Disclosure Schedule and  events or circumstances  affecting the Syndicated Company Loans, since June 30, 2020, (i) no  event  or  events  have  occurred  that  have  had  or  would  reasonably  be  expected  to  have,  either  individually  or  in  the  aggregate,  a  Material  Adverse  Effect  on  the  Acquired  Companies,  (ii)  except  with  respect  to  the  process  resulting  in  the  Contemplated  Transactions,  the  Acquired  Companies have conducted their business in all material respects only in the ordinary course of  business  consistent  with  past  practice,  and  (iii)  Medley,  the  Acquired  Companies  and  their  applicable  respective  Representatives  have  monitored the Company  Loans and the Company- Owned  Equity  Securities,  including  any  data  rooms, correspondence  or  other  materials  exchanged  in  connection  therewith,  in  the  ordinary course  of  business  consistent  with  past  practice  and  have  valued  the  Company  Loans  and  Company-Owned  Equity  Interests  in  accordance with their respective valuation policies and procedures.                (b)   Except as set forth on Section 4.7(b) of the Seller  Disclosure  Schedule,  since the execution of that certain Bid Letter, dated as of September 4, 2020, by and between  Medley and Buyer, (i) no Acquired Company has acquired, sold, transferred, leased, licensed,  pledged, mortgaged, assigned or otherwise disposed of, or encumbered or exchanged, any loans  or any portions thereof, (ii) none of Medley or the Acquired Companies have consented to or  approved any material modification, amendment, waiver or any other change with respect to any  Company  Loan,  including  with  respect  to  any  terms  thereof,  and  (iii)  there  has  been  no  (A)  payment or prepayment of a Company Loan in excess of $150,000 for an individual Company  Loan  or  $500,000  in  the  aggregate  for  all  Company  Loans  (other  than  scheduled  quarterly  amortization  payments  in  accordance  with  the  Company  Loan  Documents),  (B)  actual  or,  to  Medley’s Knowledge, proposed in writing, refinancings of any Company Loan, (C) actual or, to  Medley’s Knowledge, proposed in writing, incremental financings or upsizes of any Company  Loan,  (D)  actual  or,  to  Medley’s  Knowledge,  proposed  in  writing,  requests  for  amendments,  waivers, consents or changes to any material terms of any Company Loan, and (E) sale, transfer  or disposition of any Company Loan.               (c)   Since June 30, 2020, none of the Acquired Companies has, except to the   extent expressly contemplated by this Agreement (or any other Transaction Document) taken any   action  to  make,  change  or  rescind  any  Tax  election,  changed  or  adopted  any  annual  Tax   accounting period, changed or adopted any method of Tax accounting, filed any amended Tax   Return  or  taken  any  position  on  any  Tax  Return,  entered  into  any  “closing  agreement”  as   described in Section 7121 of the Code (or any corresponding or similar provision of state, local   or  foreign  income  Tax  Law),  settled  or  compromised any  action,  examination,  audit  or   investigation relating to Taxes, surrendered any right to a refund of Taxes or waived or extended                                         14   





 






the  statute  of  limitations  with  respect  to  any  Tax or  Tax  Return  (other  than  an  automatic  extension to extend the time for filing any Tax Return in the ordinary course of business) or  taken any action, or entered into any other transaction, in each case that would have the effect of  increasing the Tax Liability of Buyer or the Acquired Companies in respect of any Post-Closing  Tax Period.         4.8   Legal Proceedings.                (a)   No Acquired Company is a party to any, and there are no (and during the   past three (3) years, there have not been any) pending or, to Medley’s Knowledge, threatened,   material Proceedings against any Acquired Company (or, to Medley’s Knowledge, pending or   threatened against or affecting any of the Acquired Companies’ Representatives with respect to   their activities for or on behalf of the Acquired Companies) or to which any of their assets are   subject.  To Medley’s Knowledge, there is no basis for future Proceedings against an Acquired   Company  or  to  which  any  of  their  assets,  including the  Company  Loans  and  the  Company-  Owned Equity Interests, are subject.                (b)   There  is  no  material  judgment,  settlement  agreement,  order,  injunction,   decree  or  regulatory  restriction  (other  than  those of  general  application  that  apply  to  similarly   situated companies or their Subsidiaries) imposed upon an Acquired Company or the assets of an   Acquired Company.          4.9   Company Loans.                (a)   Section  4.9(a)  of  the  Seller  Disclosure  Schedule  sets  forth,  as  of  the  Closing Date, a true, correct and complete list of (i) each Company Loan owned by the Acquired  Companies, (ii) the name of the Borrower of each Company Loan, (iii) the interest rate on each  Company  Loan,  (iv)  the  maturity  date  of  each  Company  Loan,  (v)  the  outstanding  unpaid  principal amount of each Company Loan, (vi) the amount of accrued interest for each Company  Loan; (vii) the amount of accrued but unpaid fees or other amounts (other than accrued interest)  for  each  Company  Loan;  (viii)  the  currency  for  each  Company  Loan;  (ix)  any  undrawn  commitments with respect to each Company Loan; and (x) whether such Company Loan is on  accrual  or  non-accrual  status.  Except  as  set  forth on  Section  4.9(a)  of  the  Seller  Disclosure  Schedule, no Company Loan constitutes a delayed draw term loan.                (b)   Each Company Loan Document to which an Acquired Company is a party  constitutes  the  legal,  valid  and  binding  obligation  of  such  Acquired  Company  and,  to  the  Knowledge  of  Medley,  the  applicable  Borrower,  enforceable  against  such  Acquired  Company  and, to the Knowledge of Medley, the applicable Borrower, in accordance with their respective  terms (subject to the Enforceability Exception). No fact, event or condition exists that constitutes  or, after notice or lapse of time or both, will constitute, a breach, violation or default on the part  of  an  Acquired  Company  under  any  Company  Loan  Document.   As  of  the  Closing  Date,  to  Medley’s  Knowledge  (i)  there  is  no  outstanding  “Event  of  Default”  (or  similar  terms  having  comparable meanings) under any Company Loan Document or any “Default” (or similar terms  having  comparable  meanings)  under  any  Company  Loan Document,  (ii)  there  has  been,  since  September 4, 2020, no other material and adverse change in facts, events or circumstances with  respect to a Company Loan (other than any Syndicated Company Loan), (iii) no Company Loan                                         15   





 






is more than thirty (30) days delinquent in the payment of interest or principal therein, and (iv)  there is no pending payment, pre-payment, refinancing or similar event relating to any Company  Loan (other than payments of interest and amortization in accordance with the Company Loan  Documents) for which a Borrower has delivered a notice of repayment.                   (c)   Except as set forth on Section 4.9(c) of the Seller  Disclosure  Schedule,  complete  and  correct  copies  of  all  the  Company  Loan  Documents  in  the  possession  of  the  Acquired  Companies  or  an  Affiliate  thereof,  including  all  modifications,  amendments  and  supplements thereto, have been made available to Buyer. Except as set forth in such documents  provided to Buyer, the Company Loan Documents and except as set forth on Section 4.9(c) of  the Seller Disclosure Schedule, (1) have not been modified in any material respect, satisfied or  canceled  in  whole  or  in  part,  or  subordinated  to  any  other  indebtedness  of  the  applicable  Borrower and (2) are not subject to any release or compliance waiver that is currently in effect as  to any provision thereof (or, if such release or compliance waiver exists, was made available to  Buyer), except for  any such release or  compliance waiver that is not material to the Acquired  Companies.   There  are  no  material  disputes  pending or,  to  Medley’s  Knowledge,  threatened  against any Acquired Company with respect to any Company Loan Document.                (d)   None of the Company Loan Notes has any marks or notations indicating  that it has been pledged, assigned or otherwise conveyed to any Person other than an Acquired  Company.         4.10  Company-Owned Equity Interests.                (a)   Section 4.10(a) of the Seller Disclosure Schedule sets forth a true, correct  and  complete  list  of  (i)  each  Company-Owned  Equity Interests  of  an  Existing  Portfolio  Company;  (ii)  the  issuer  of  such  Company-Owned  Equity  Interest,  and  (iii)  any  undrawn  commitments with respect to each Company-Owned Equity Interest.                (b)   No  Acquired  Company  is  in  breach  or  under  default  of  its  obligations   under,  or  otherwise  pursuant  to  the  terms,  conditions  or  provisions  of,  any  of  such  Equity   Governing  Documents.   There  are  no  material  disputes  pending  or,  to  Medley’s  Knowledge,   threatened with respect to any Equity Governing Documents.           4.11  Company Assets; Title to Assets.               (a)   Except as set forth in Section 4.11(a) of the Seller Disclosure Schedule, to  Medley’s Knowledge, there are no Proceedings pending in which one of the Borrowers has (i)  filed, or consented (by answer or otherwise) to the filing against it, of a petition for relief under  any bankruptcy or insolvency law of any jurisdiction, (ii) made an assignment for the benefit of  its  creditors,  (iii)  consented  to  the  appointment  of  a  custodian,  receiver,  trustee,  liquidator  or  other judicial officer with similar power over itself or any substantial part of its property, (iv)  been adjudicated by a court to be insolvent, or (v) taken corporate, limited liability company or  partnership action for the purpose of authorizing any of the foregoing.                 (b)   Except as set forth in Section 4.11(b)(i) of the Seller Disclosure Schedule,  the applicable Acquired Company is the sole owner and holder of the Company Loans and the  Company-Owned Equity Interests and such Acquired Company  has  good  and  marketable  title                                         16   





 






and all legal and beneficial interest in and to all of the Company Loans and Company-Owned  Equity  Interests, free and clear of  any  Liens  (but subject  to  the  terms  of  the  Company  Loan  Documents  or  the  Equity  Governing  Documents  and  restrictions  on  transfer  arising  under  Applicable Law). Except as set forth in Section 4.11(b)(ii) of the Seller Disclosure Schedule, no  Company Loan is subject to a participation or other participating or other interest of any nature  whatsoever  pursuant  to  which  an  Acquired  Company  has  participated  its  interests  (or  sold  a  participating or other interest) in such Company Loan.                  (c)   The  only  assets  owned  by  the  Acquired  Companies  are  the  Company  Loans, the Company-Owned Equity Interests and the Cash and Cash Equivalents.         4.12  Compliance with Applicable Law.               (a)   The  Acquired  Companies  hold  all  Permits  necessary  for  the  lawful  conduct of their respective businesses, and have complied in all material respects with and are  not in default in any respect under any, any Permit.  The Acquired Companies are, and have been  during the past three (3) years, in compliance in all material respects with all Applicable Laws.   None of Medley or the Acquired Companies have received any notice, whether written or, to the  Knowledge  of  Medley,  oral,  involving  any  failure  of  any  Acquired  Company  or  a  Company  Loan  (other  than  a  Syndicated  Company  Loan)  to  be  in  compliance  with  Applicable  Law.   During  the  past  three  (3)  years,  no  Acquired  Company  has  been  subject  to  any  inspection,  finding,  investigation,  penalty,  assessment,  formal  inquiry,  audit  or  any  other  compliance  or  enforcement action by a Governmental Entity.                (b)   None  of  the  Acquired  Companies,  nor  any  of  their  respective  officers,  directors or employees, nor to the Knowledge of Medley, any other Representative acting on the  direction of, or to the Knowledge of Medley, on behalf of the Acquired Companies, is currently  or has been since January 1, 2015: (A) a Sanctioned Person, (B) organized, resided or located in  a  Sanctioned  Country,  (C)  engaging  or  has  engaged  in  any  dealings  or  transactions  with  any  Sanctioned Person or in any Sanctioned Country, to the extent such activities violate applicable  Sanctions Laws or Ex-Im Laws, or (D) otherwise in violation of applicable Sanctions Laws, Ex- Im  Laws,  or  U.S.  anti-boycott  Laws  (collectively,  “Trade  Control  Laws ”).   The  Acquired  Companies are in compliance, in all material respects, with the United States Public Law 107-56,  Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and  Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended from time to time, and the  rules and regulations promulgated thereunder from time to time.                (c)   The Acquired Companies have not, and no Representative or other Person  acting for or on behalf of an Acquired Company has, in the course of his or her actions for or on  behalf of an Acquired Company, directly or indirectly: (i) used any corporate funds for unlawful  contributions, gifts, entertainment or other expenses related to political activity or to retain or  engage a prospective client; (ii) made any unlawful payments to foreign or domestic government  officials from corporate funds; (iii) established or maintained any unlawful or unrecorded fund or  corporate  monies  or  other  assets;  (iv)  made  any  bribe,  rebate,  payoff,  influence  payment,  kickback or similar payment; or (v) taken any action in violation of the United States Foreign  Corrupt Practices Act of 1977, the UK Bribery Act of 2010 or any other anti-corruption or anti-                                         17   





 






bribery  or  anti-money  laundering  Law  of  any  jurisdiction  (collectively,  “ Anti-Corruption  Laws ”).               (d)   Since January 1, 2015, no Acquired Company has (i) received from any  Governmental  Entity,  or  any  other  Person  any  written  notice,  inquiry  or  internal  or  external  allegation, (ii) made any voluntary or involuntary disclosure to a Governmental Entity, or (iii)  conducted  any  internal  investigation  or  audit  concerning  any  actual  or  potential  violation  or  wrongdoing related to Trade Control Laws or Anti-Corruption Laws.          4.13  Books and Records; Officers and Managers; Bank Accounts.                 (a)   The  books  of  account,  minute  books,  equity  record  books  and  other   records of the Acquired Companies, all of which have been made available to Buyer, are true and   complete  in  all  material  respects.   At  the  Closing,  all  such  books  and  records  will  be  in  the   possession of the Acquired Companies.                (b)   Section  4.14(b)  of  the  Seller  Disclosure  Schedule  lists  all  officers,  managers and/or directors of the Acquired Companies as of immediately prior to the Closing.                (c)   Section  4.14(c)  of  the  Seller  Disclosure  Schedule  sets  forth  an  accurate  and complete list of the name and addresses of every bank or other financial institution in which  an Acquired Company maintains an account or in which an account is maintained for the benefit  of an Acquired Company (whether checking, saving or otherwise), lock box or safe deposit box,  and the account numbers and names of Persons having signing authority or other access thereto.         4.14  Taxes.                (a)   Each of the Company Loans and Company Loan Notes is in “registered  form” within the meaning of Section 163(f) of the Code for U.S. federal income tax purposes.               (b)   Since  formation,  the  Company  has  always  been  classified  as  a  “partnership”  under  Treasury  Regulations  Section  301.7701-2(c)(1)  and  is  not,  and  has  never  been, a corporation under Treasury Regulations Section 301.7701-2(b) for U.S. federal income  tax purposes and income Tax purposes in each applicable state, local and foreign jurisdiction.   Each of MCC Holdings and MCC SPV is and has always been since the date of formation an  entity  classified  as  disregarded  as  separate  from  the  Company  as  described  under  Treasury  Regulations  Section  301.7701-2(c)(1)  for  U.S.  federal  income  tax  purposes  and  income  Tax  purposes in each applicable state and local jurisdiction.               (c)   Each of the Acquired Companies has timely filed all income and material  other Tax Returns required to be filed by it under Applicable Law and has paid or made adequate  provisions for all income and other Taxes (whether or not shown on or required to be shown on  any Tax Return) due and payable by such Acquired Company.  All such Tax Returns have been  prepared according to Applicable Law, in good faith, and are true, correct, and complete in all  material respects.               (d)   None of the Acquired Companies is required to file any Tax Returns in  any jurisdictions other than those set forth on Section 4.15(d) of the Seller Disclosure Schedules.                                          18   





 






No  written  claim  has  been  made  by  any  Governmental Entity  in  any  jurisdiction  where  the  Acquired  Companies  do  not  file  Tax  Returns  that  it is,  or  may  be,  subject  to  Tax  by  that  jurisdiction.               (e)   There are no actions by any Governmental Entity in respect of or relating   to the Taxes of the Acquired Companies that are currently  pending,  threatened  in  writing,  or   being  conducted,  nor,  to  Medley’s  Knowledge,  any  examinations,  audits  or  investigations   relating to the Taxes of the Acquired Companies and no extensions or waivers of statutes of   limitations  have  been  given  or  requested  with  respect  to  any  Taxes  or  Tax  Returns  of  the   Acquired Companies other than an automatic extension to extend the time for filing any Tax   Return in the ordinary course of business.  There is no outstanding written claim concerning any   Tax Liability of the Acquired Companies that has been claimed by any Governmental Entity.               (f)   Medley  has  made  available  to  Buyer  complete  and  true  copies  of  all  income and all other material Tax Returns, examination, audit or action reports, and statements  of  deficiencies  assessed  against  or  agreed  to  by  the  Acquired  Companies  for  Tax  periods  beginning on or after January 1, 2016.               (g)   Each  of  the  Acquired  Companies  has  complied  in  all material  respects   with all Applicable Laws, rules and regulations relating to the payment and withholding of Taxes   (including,  but  not  limited  to,  any  withholding  on distributions  to  nonresident  partners  under   Applicable  Law,  withholding  and  reporting  requirements  under  Code  Sections  1441  through   1446, 3401 through 3406, 6041 and 6049, and similar provisions under any other requirements   under Applicable  Law)  and has, within the times and  manner  prescribed  by  Applicable  Law,   withheld from amounts paid or owing to any employee, independent contractor, creditor, foreign   person or other third party and paid over to proper Governmental Entities on a timely basis all   amounts required.                (h)   No  Liens for Taxes in respect of any of the  Acquired  Companies  exist   with respect to any assets or properties of the Acquired Companies except for statutory liens for   current Taxes or other governmental charges not yet due and payable or the amount or validity of   which is being contested in good faith by appropriate proceedings by an Acquired Company and   for which appropriate reserves have been established in accordance with GAAP and are included   on the balance sheet.                (i)   None of the Acquired Companies has ever been a member of an Affiliated   Group that filed or was required to file a consolidated, combined or unitary Tax Return.  None of   the Acquired Companies has any Liability for Taxes of any Person under Treasury Regulations   Section 1.1502-6 (or any corresponding provision of state, local or foreign Law), as transferee or   successor, or by contract (other than commercial contracts entered into in the ordinary course not   primarily related to Taxes).                (j)   None of the Acquired Companies is party to or bound by any Tax sharing   agreements,  Tax  allocation  agreements,  or  similar  agreements  the  principal  purpose  of  which   relates to Taxes (including any advance pricing agreement, closing agreement or other agreement   relating  to  Taxes  with  any  Governmental  Entity).   No  private  letter  rulings,  technical  advice                                          19   





 






memoranda or similar agreement or rulings have been requested, entered into, or issued by any  Governmental Entity with respect to any of the Acquired Companies.                (k)   None of the Acquired Companies requested any extension of time within  which to file any Tax Return, which Tax Return has not yet been filed.                (l)   None of the Acquired Companies has been a party to a transaction that is   or  is  substantially  similar  to  a  “reportable  transaction,”  within  the  meaning  of  Treasury   Regulations Section 1.6011-4(b).                (m)   None of the Acquired Companies will be required to include any item of   income in, or exclude any item or deduction from, taxable income for any Tax period or portion   thereof ending after the Closing Date as a result of any: (i) change in a method of accounting   under Section 481 of the Code (or any comparable provision of state, local or foreign Tax Laws),   or use of an improper method of accounting, for a Tax period ending on or prior to the Closing   Date; (ii) an installment sale or open transaction occurring on or prior to the Closing Date; (iii)   prepaid amount or deferred revenue received on or before the Closing Date (other than prepaid   amount or deferred revenue received in the ordinary course of business); or (iv) election under   Section 108(i) of the Code.                (n)   Each of the Sellers is not a “foreign person” as that term is used in Section   1446(f) of the Code and Treasury Regulations Section 1.1445-2.                (o)   None  of  the  Acquired  Companies  has  been  subject  to Tax,  engaged  in   business, or had a permanent establishment in any jurisdiction outside the United States.          4.15  No  Change  of  Control  Payments.   No  Acquired  Company  has  made  nor  is  obligated to make any payment (including rescission or liquidated damages) to any Person in  connection  with  the  Contemplated  Transactions  or  would  be  obligated  to  make  any  such  payment  in  connection  with  any  other  change  of  control  transaction  involving  an  Acquired  Company.         4.16  Disclaimers.   NONE  OF  THE  SELLERS,  ANY  AFFILIATES  THEREOF,  OR  ANY  ADVISERS  OR  REPRESENTATIVES  (FINANCIAL,  LEGAL  OR  OTHERWISE),  HAVE MADE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OF  ANY  NATURE  WHATSOEVER  RELATING  TO  THE  SELLER,  THE  ACQUIRED  COMPANIES OR THE BUSINESS OF THE SELLER OR OTHERWISE IN CONNECTION  WITH     THE    CONTEMPLATED       TRANSACTIONS,      OTHER    THAN     THOSE  REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH            IN (I) ARTICLE III  HEREOF, (II) ARTICLE IV HEREOF, OR (III) THE PURCHASE PRICE CERTIFICATE.           Without limiting  the  generality  of  the  foregoing,  no  Seller  nor  any  of  their  respective  Affiliates  or  representatives  have  made,  and  shall not  be  deemed  to  have  made,  any  representations or warranties in the information or materials relating to the Sellers, the Acquired  Companies or the business of the Sellers and the Acquired Companies made available to Buyer  and  its  Affiliates,  including  projections,  confidential  information  memoranda,  due  diligence  materials,  data  room  materials,  or  in  any  presentation  by  management  of  the  Sellers,  the  Acquired  Companies  or  others  in  connection  with  the  Contemplated  Transactions,  and  no                                         20   





 






statement contained in any of such information or materials or made in  any  such presentation  shall be deemed a representation or warranty hereunder or otherwise or deemed to be relied upon  by  the  Buyer  in  executing,  delivering  and  performing  this  Agreement,  any  other  transaction  documents and the transactions contemplated hereby and thereby, in each case, other than with  respect to any claim for fraud, willful misconduct or intentional misrepresentation.                                       ARTICLE V                 REPRESENTATIONS AND WARRANTIES OF BUYER          Buyer represents and warrants to the Sellers as follows:          5.1   Corporate  Organization.  Buyer  is  a  limited  partnership  duly  organized,  validly  existing and in good standing under the laws of the State of Delaware. Buyer has the requisite  partnership power and authority to own or lease all of its properties and assets and to carry on its  business as it is now being conducted, and is duly licensed or qualified to do business in each  jurisdiction in which the nature of the business conducted by it or the character or location of the  properties  and  assets  owned  or  leased  by  it  makes  such  licensing  or  qualification  necessary,  except where the failure to be so licensed or qualified would not, individually or in the aggregate,  have a Material Adverse Effect on Buyer.         5.2   Authority; No Violation.                (a)   Buyer has full partnership power and authority to execute and deliver the  Transaction Documents to which it is a party and to consummate the Contemplated Transactions.  The  execution  and  delivery  of  the  Transaction  Documents  to  which  it  is  a  party  and  the  consummation of the Contemplated Transactions have been duly and validly approved by Buyer  and  no  other  proceedings  on  the  part  of  Buyer  are  necessary  to  approve  this  Agreement  or  to  consummate the Contemplated Transactions. This Agreement has been duly and validly executed  and delivered by Buyer and (assuming due authorization, execution and delivery by the Sellers  and  the  Company)  constitutes  the  valid  and  binding obligation  of  Buyer,  enforceable  against  Buyer in accordance with its terms (subject to the Enforceability Exception).               (b)   Neither the execution and delivery of the Transaction Documents to which  it is a party by Buyer nor the consummation by Buyer of the Contemplated Transactions, nor  compliance by Buyer with any of the terms or provisions of this Agreement, will (i) violate any  provision of the Organizational Documents of Buyer, or (ii) except as would not, individually or  in  the  aggregate,  be  reasonably  expected  to  materially  adversely  affect  Buyer’s  ability  to  consummate the Contemplated Transactions (A) violate any Applicable Law applicable to Buyer  or any of its Subsidiaries, properties or assets, or (B) except as would not, individually or in the  aggregate, have a Material Adverse Effect on Buyer, violate, conflict with, result in a breach of  any provision of or the loss of any benefit under, constitute a default (or an event which, with  notice or lapse of time, or both, would constitute a default) under, result in the termination of or a  right of termination or cancellation under, accelerate the performance required by, or result in the  creation  of  any  Lien  upon  any  of  the  respective  properties  or  assets  of  Buyer  or  any  of  its  Subsidiaries  under,  any  of  the  terms,  conditions  or  provisions  of  any  note,  bond,  mortgage,  indenture,  deed  of  trust,  license,  lease,  franchise,  agreement  or  other  Contract,  instrument  or                                          21   





 






obligation to which Buyer or any of its Subsidiaries is a party or by which any of them or any of  their respective properties or assets is bound.         5.3   Consents and Approvals. No consents or approvals of any Person are necessary in  connection with the execution and delivery by Buyer of this Agreement or the consummation by  Buyer  of  the  Contemplated  Transactions  except  for  those  that  have  been  obtained  as  of  the  Closing Date.         5.4   Broker’s  Fees.  Neither  Buyer  nor  any  of  its  Subsidiaries  nor  any  of  their  respective officers or directors has employed any broker or finder or incurred any liability  for  any  broker’s  fees,  commissions  or  finder’s  fees  in connection  with  the  Contemplated  Transactions.         5.5   No Arrangements with Management or Stockholders. Other than this Agreement,  as  of  the  Closing  Date,  there  are  no  contracts,  undertakings,  commitments,  agreements  or  obligations or understandings, whether written or oral,  in  each  case  that  are  binding,  between  Buyer or any of its Affiliates, on the one hand, and any member of either Seller’s management or  the  governing  bodies,  or  any  stockholder  of  either Seller,  on  the  other  hand,  relating  to  the  Contemplated  Transactions  or  the  operations  of  the Acquired  Companies  or  either  Seller  following Closing.         5.6   Status  of  Buyer.  Buyer  (a)  is  a  “sophisticated”  investor  and/or  an  “accredited”  investor as that term is defined in Rule 501 of Regulation D under the Securities Act, (b) is able  to bear the economic risk associated with the purchase of the Membership Interests, (c) has such  knowledge  and  experience  so  as  to  be  aware  of  the  risks  and  uncertainties  inherent  in  the  purchase of rights of the type contemplated in this Agreement,  and (d) has independently  and  without  reliance  upon  either  Seller,  and  based  upon  such  information  as  Buyer  has  deemed  appropriate,  made  its  own  analysis  and  decision  to enter  into  this  Agreement.  Buyer  is  not  purchasing the Membership Interests with a view towards sale or distribution thereof in violation  of the Securities Act.         5.7   Investigation. Buyer has conducted its own independent  review  and  analysis  of  the businesses, assets, condition, operations and prospects of the Acquired Companies and has  been provided access to the properties, premises and records of the Acquired Companies for this  purpose. In entering into this Agreement, Buyer has relied solely upon its own investigation and  analysis,  and  Buyer  acknowledges  that,  except  for  the  representations  and  warranties  of  the  Sellers  in  Articles  III  and  IV,  the  Purchase  Price Certificate,  and  the  Transaction  Documents,  none of the Sellers or their respective Subsidiaries nor  any of their respective Representatives  makes  any  representation  or  warranty,  either  express  or  implied,  as  to  the  accuracy  or  completeness  of  any  of  the  information  provided  or made  available  to  Buyer  or  its  Representatives. Without limiting the generality of the foregoing, none of the Sellers or any of  their respective Subsidiaries nor any of their respective Representatives or any other Person has  made  a  representation  or  warranty  to  Buyer  with  respect  to  (a)  any  projections,  estimates  or  budgets for the Acquired Companies or (b) any material, documents or information relating to  the  Acquired  Companies  made  available  to  Buyer  or  its  Representatives  in  any  “data  room,”  confidential  information  memorandum  or  otherwise,  except  as  covered  by  the  Transaction  Documents, the Purchase Price Certificate or a representation or warranty in Article III or IV.                                          22   





 






Notwithstanding anything to the contrary herein, this Section 5.7 shall not apply with respect to  any claims for fraud, willful misconduct or intentional misrepresentation that Buyer may have.                                      ARTICLE VI                            ADDITIONAL AGREEMENTS         6.1   Additional Agreements. In case at any time after the Closing any further action is  necessary  or  desirable  to  carry  out  the  purposes  of  this  Agreement,  the  proper  officers  and  directors of each Seller shall take all such necessary action as may be reasonably requested by  Buyer.         6.2   Further  Assurances.  Each  Seller  shall,  at  any  time from  and  after  the  Closing,  upon  the  reasonable  request  of  Buyer,  do,  execute, acknowledge  and  deliver,  and  cause  to  be  done, executed, acknowledged and delivered, all such further acts, deeds, assignments, transfers,  conveyances,  powers  of  attorney  or  assurances  as  may  be  reasonably  required  to  transfer,  convey, grant and confirm to and vest in Buyer good title to all of the Membership Interests, free  and  clear  of  all  Liens,  and  otherwise  consummate  the  transactions  contemplated  by  this  Agreement and the other Transaction Documents.  Each of the parties hereto shall, at any time  from and after the Closing, upon the reasonable request of any other party hereto, do, execute,  acknowledge and deliver, and cause to be done, executed, acknowledged and delivered, all such  further acts, deeds, assignments, transfers, conveyances, powers of attorney or assurances as may  be reasonably required to consummate the transactions contemplated by this Agreement and the  other Transaction Documents.         6.3   Confidentiality.               (a)   The  parties  agree  that  the  Confidentiality  Agreement  shall  terminate  automatically  as  of  the  Closing  without  any  further  action  by  the  parties  and  without  further  obligations or liabilities of Buyer.               (b)   For a period of two (2) years following the Closing, each Seller shall, and  will  cause  each  of  their  respective  Subsidiaries,  successor,  advisor,  and  their  respective  Representatives to, treat and hold as strictly confidential any data or information related to the  Acquired  Companies,  Buyer  or  its  direct  or  indirect  shareholders,  including  information  and  documents disclosed to either Seller (or any of their respective Representatives), whether before  or  after  the  date  hereof,  pursuant  to  this  Agreement  or  in  connection  with  the  Contemplated  Transactions; provided, that Sellers shall not be bound by the confidentiality requirements of this  Section  6.3(b)  with  respect  to  data  or  information and  documents  which  (A)  are  or  become  generally available to the public other than as a result of a disclosure by either Seller after the  Closing  Date  in  breach  of  its  obligations  hereunder,  (B)  are  required  to  be  disclosed  in  connection with the ordinary course of any Seller’s or its Representative’s SEC’s reporting or  other regulatory or self-regulatory  process, (C) are required to be disclosed by Applicable Law  or the rules of  any self-regulatory organization so long as  reasonable prior notice is given to  Buyer of such disclosure and a reasonable opportunity is afforded to Buyer to contest the same,  (D)  are  disclosed  in  connection  with  the  enforcement  of  any  right  or  remedy  relating  to  this  Agreement or (E) are obtained independently from a source that is authorized to disclosure such  data, information and documents.                                           23   





 






            (c)   For a period of two (2) years following the Closing, Buyer shall, and will   cause its Subsidiaries, successor, advisor, and their respective Representatives to, treat and hold   as  strictly  confidential  any  data  or  information  related  to  the  Sellers  and  their  respective   Subsidiaries,  or  its  direct  or  indirect  shareholders,  including  information  and  documents   disclosed to Buyer (or its respective Representatives), whether before or  after the date hereof,   pursuant to this Agreement or in connection with the Contemplated Transactions; provided, that  Buyer shall not be bound by the confidentiality requirements of this Section 6.3(c) with respect  to  data  or  information  and  documents  which  (A)  relates  to  the  Company  Loans,  Company- Owned Equity Securities, or the Acquired Companies, (B) are or become generally available to  the public other than as a result of a disclosure by Buyer after the Closing Date in breach of its  obligations hereunder, (C) are required to be disclosed by Applicable Law the rules of any self- regulatory organization so long as reasonable prior notice is given to Sellers of such disclosure  and  a  reasonable  opportunity  is  afforded  to  Seller to  contest  the  same,  (D)  are  disclosed  in  connection with the enforcement of any right or remedy relating to this Agreement or (E) are  obtained independently from a source that is authorized to disclosure such data, information and  documents.         6.4   Waiver.  In  connection  with  the  Contemplated  Transactions,  each  Seller  waives  any  and all rights of first offer, all transfer restrictions or any similar rights or restrictions set  forth in the Organizational Documents of the Company, including the right of first offer set forth  in Section 5.1(b) of the Limited Liability Company Operating Agreement of the Company, dated  as of March 27, 2015, and any notice and/or consent requirements in connection therewith, in  each  case,  with  respect  to  the  offer  and  sale  of  the  Membership  Interests  pursuant  to  this  Agreement.  This waiver shall be a valid, binding and enforceable legal obligation of each Seller.                                    ARTICLE VII                                    INDEMNITY          7.1   Survival. All representations and warranties of the parties hereto contained in this  Agreement  or  in  any  certificate  or  other  document  delivered  pursuant  to  the  terms  of  this  Agreement  shall  survive  the  Closing  Date  until  eighteen  (18)  months  after  the  Closing  Date,  other  than  (a)  Sections  4.10  (Company-Owned  Equity Securities)  and  4.12(c)  (Unlawful  Payments), which shall survive for three (3)  years after the Closing Date; (b) Sections 4.5(b)  (Undisclosed Liabilities), 4.9 (Company Loans), and 4.11 (Company Assets; Title to Company  Assets),  which  shall  survive  for  three  (3)  years  after  the  Closing  Date;  (c)  Sections  3.1  (Corporate  Organization  of  Sellers),  3.2  (Authority;  No  Violation),  3.4  (Title  to  Membership  Interests), 4.1 (Corporate Organization of the Company; Subsidiaries), 4.2 (Capitalization), 4.3  (Authority;  No  Violation),  4.6  (Broker’s  Fees),  4.14  (Taxes),  4.15  (No  Change  of  Control  Payments), 5.1 (Corporate Organization), 5.2 (Authority; No Violation), and 5.4 (Broker’s Fees),  which shall survive until sixty (60) days following the expiration of all statutes of limitations  applicable to the matters covered thereby, including any extensions thereof; and (d) Section 3.7  (Representations of GALIC), which shall survive for six (6) months after the Closing Date (such  representations and warranties set forth in the foregoing  clauses  (b),  (c)  and  (d)  are  hereafter  collectively referred to as the “ Excepted  Matters ”); provided, however, that representations or  warranties  which  are  the  basis  for  claims  timely  asserted  under  this  Agreement  prior  to  the  expiration of such applicable time periods shall also survive until the final resolution of those                                         24   





 






claims.  All covenants and other agreements of the parties hereto contained in this Agreement  shall survive the Closing indefinitely, unless a covenant, by its terms, ends on a specified date.           7.2   Indemnification.                (a)   Subject to the provisions of this Article VII, Medley shall indemnify and  hold harmless Buyer, the Acquired Companies, and their respective shareholders, Subsidiaries,  Affiliates and Representatives (together, the “ Buyer Indemnified Parties ”) from, against, and in  respect of  any and all direct and indirect damages, losses, Liabilities, Proceedings, judgments,  settlements,  Liens,  Taxes,  penalties,  interest  obligations  and  expenses  (including  costs  of  investigation and defense and reasonable attorney and other professional advisor and consulting  fees and expenses) whether or not involving a third  party  (collectively,  “ Losses ”)  incurred  or   suffered by such Buyer Indemnified Party arising from, by reason of or, in connection with:                      (i)   any  misrepresentation  or  breach  or  alleged  misrepresentation  or   breach  of  any  representation  or  warranty  of  Medley contained  in  Article  III  or  any  other  certificate or document delivered by Medley pursuant to this Agreement or any other Transaction  Document; and                      (ii)  any  breach  or  non-performance  by  Medley  of  any  covenant  or  agreement made by Medley in this Agreement, any other Transaction Document or any other  certificate  or  document  delivered  in  connection  with  this  Agreement  or  any  other  Transaction  Document.               (b)   Subject  to  the  provisions  of  this  Article  VII,  Medley,  severally,  shall  indemnify and hold harmless the Buyer Indemnified Parties from, against and in respect of its  Pro Rata Portion of any and all Losses incurred or suffered by any such Buyer Indemnified Party  arising from, by reason of or, in connection with:                      (i)   any  misrepresentation  or  breach  or  alleged  misrepresentation  or   breach  of  any  representation  or  warranty  of  the  Sellers  contained  in  Article  IV,  any  other  Transaction Document or any other certificate or document delivered by the Company pursuant  to this Agreement or any other Transaction Document (including, for the avoidance of doubt, the  Purchase Price Certificate);                      (ii)  any breach or non-performance by the Company of any covenant   or agreement made by the Company in this Agreement, any other Transaction Document or any   other  certificate  or  document  delivered  in  connection  with  this  Agreement  or  any  other   Transaction Document;                      (iii)  any Pre-Closing Taxes; and                      (iv)  any Indebtedness of the Acquired Companies not included in the   calculation of the Purchase Price set forth in the Purchase Price Certificate.                (c)   Subject to the provisions of this Article VII, Buyer  shall  indemnify  and  hold harmless each Seller and its Representatives (together,  the  “ Seller  Indemnified  Parties ”)                                         25   





 






from,  against  and  in  respect  of  any  and  all  Losses incurred  or  suffered  by  any  such  Seller  Indemnified Party arising from, by reason of or, in connection with:                     (i)   any  misrepresentation  or  breach  or  alleged  misrepresentation  or  breach of any representation or warranty of Buyer contained in Article V, any other Transaction  Document  to  which  Buyer  is  a  party  or  any  other  certificate  or  document  delivered  by  Buyer  pursuant to this Agreement or any other Transaction Document; and                      (ii)  any breach or non-performance by Buyer of any of its covenants or  agreements contained in this Agreement, any other Transaction Document to which Buyer is a  party or any other certificate or document delivered by Buyer pursuant to this Agreement or any  other Transaction Document.               (d)   Subject to the provisions of this Article VII, GALIC shall indemnify and  hold harmless the Buyer Indemnified Parties from, against and in respect of any and all Losses  incurred  or  suffered  by  any  such  Buyer  Indemnified Party  arising  from,  by  reason  of  or,  in  connection with any misrepresentation or breach or alleged misrepresentation or breach of any  representation or warranty of GALIC contained in Section 3.7.         7.3   Defense of Claims.                (a)   Non-Third Party Claims.  If a claim for Losses (a “Claim ”) is to be made  by an Indemnified Party, other than in connection with a Tax Claim (which shall be governed by  Section  2.3(e)),  such  Indemnified  Party  shall  give notice  (including  a  reasonably  detailed  description  of  the  Claim)  to  the  party  from  whom  such  indemnification  is  sought  (the  “Indemnifying Party ”) before the applicable survival period for such Claim expires (if ever) in  accordance  with  Section  7.1  and  as  promptly  as  practicable  after  such  Indemnified  Party  becomes  aware  of  any  fact,  condition  or  event  which  may  give  rise  to  Losses  for  which  indemnification may be sought under this Article VII; provided, however, that the failure of any  Indemnified  Party  to  give  timely  notice  hereunder  shall  not  affect  rights  to  indemnification  hereunder, except to the extent the Indemnifying Party  is  actually  prejudiced  by  such  failure.   Within 30 days after delivery of a notice pursuant to this Section 7.3(a) (the “ Response Period ”),  the Indemnifying Party shall deliver to the Indemnified Party a written response to such notice.   If the Indemnifying Party fails to so respond within such period, then the Indemnifying Party  shall be deemed to have irrevocably accepted the notice and agreed to pay the Losses at issue  therein, subject to the limitations set forth in this Article VII, and the Indemnifying Party shall  satisfy such obligation promptly, and in any event within ten (10) days after the expiration of the  Response Period.  If, within 30 days after delivery of the notice pursuant to this Section 7.3(a),  the Indemnifying Party delivers a written notice disputing the Indemnified Party’s entitlement to  indemnification  for  the  Losses  described  in  such  notice,  then  the  parties  shall  use  their  commercially  reasonable  efforts  to  settle  such  disputed  matters  within  30  days  following  the  expiration of the Response Period.  The parties hereto acknowledge and agree that the Federal  Rules of Evidence Rule 408 shall apply to the parties hereto during any such negotiations and  any subsequent dispute  arising therefrom.  If the parties  are  unable  to  reach  agreement  within  such 30-day period, the dispute may be resolved by any legally available means consistent with  the provisions of Section 9.6.                                          26   





 






            (b)   Third  Party  Claims.   With  respect  to  all  third  party  Proceedings  (or  threatened Proceedings) that give rise to a Claim hereunder, other than in connection with a Tax  Claim (which shall be governed by Section 2.3(e)), the Indemnified Party shall promptly after  obtaining actual knowledge of the assertion of any Proceeding (or threatened Proceeding) give  written notice to the Indemnifying Party.  After receipt of any such notice of such a Proceeding  (or threatened Proceeding), the Indemnifying Party shall have the right to defend the Indemnified  Party against the Proceeding with counsel of its choice reasonably satisfactory to the Indemnified  Party, unless the nature of the Claim creates an ethical conflict for the same counsel to represent  the Indemnified Party and the Indemnifying Party, so long as (i) the Indemnifying Party notifies  the Indemnified Party in writing within thirty (30)  days  after  the  Indemnified  Party  has  given  notice of the Claim that the Indemnifying Party will indemnify the Indemnified Party from and  against the entirety of any Losses the Indemnified Party may suffer resulting from, arising out of,  relating  to,  in  the  nature  of,  or  caused  by  the  Claim  or  raised  in  the  Proceeding,  (ii)  the  Proceeding involves only a claim for money damages and no other relief, (iii) the Indemnifying  Party  conducts the defense of the Proceeding actively  and  diligently,  and  (iv)  the  Proceeding  does  not  relate  to  or  otherwise  arise  in  connection  with  Taxes  or  any  criminal  or  regulatory  enforcement action.  The  Indemnifying Party shall not  compromise  or  settle  such  Proceeding  without the written consent of the Indemnified Party.  The Indemnified Party shall not settle or  compromise any Claim that is the subject of indemnification under this Agreement, without the  prior  written  consent  of  the  Indemnifying  Party  (such  consent  not  to  be  unreasonably  conditioned,  withheld  or  delayed)  if  (A)  injunctive  or  other  equitable  relief  will  be  imposed  against  the  Indemnifying  Party,  (B)  such  settlement  does  not  expressly  and  unconditionally  release the Indemnifying Party from all Liabilities with respect to such claim, without prejudice,  or (C) there is a finding or admission of any violation of Law or any admission of Liability by  any  Indemnifying  Party.  In  all  other  cases  the  Indemnified  Party  may  defend  the  Claim  or  Proceeding with counsel of its choosing at the reasonable expense of the Indemnifying Party.   The Indemnifying Party shall promptly and frequently apprise the Indemnified Party of the status  of the Proceeding and shall furnish the Indemnified Party with such documents and information  filed or delivered in connection with such Proceeding as the Indemnified Party may reasonably  request.  The Indemnified Party may, at its own cost, participate in the investigation, trial and  defense  of  any  such  Proceeding  defended  by  the  Indemnifying  Party  and  any  appeal  arising  therefrom.  The parties shall cooperate with each other in connection with any defense and in any  notifications to insurers.  If the Indemnifying Party fails to promptly and diligently assume and  thereafter  prosecute  the  defense  of  such  Proceeding  after  receipt  of  notice  hereunder,  the  Indemnified Party against which such Claim has been asserted shall (upon delivering notice to  such effect to the Indemnifying Party) have the right to undertake the defense, compromise or  settlement of such Proceeding with counsel of its own choosing at the reasonable expense of the  Indemnifying Party and the Indemnifying Party shall have the right to participate therein at its  own cost.         7.4   Adjustment.  The  parties  hereto  agree  that  any  indemnification  payments  made              pursuant to this Agreement shall be treated for all Tax purposes as an adjustment              to the Purchase Price, unless otherwise required by Applicable Law.         7.5   Limitations.                                           27   





 






            (a)   Except  for  Losses  in  respect  of  the  Excepted  Matters  or  resulting  from   fraud, willful misconduct, or intentional misrepresentation, no Seller shall be liable to any Buyer   Indemnified Party for Losses under Section 7.2(a)(i) or Section 7.2(b)(i), (i) unless the aggregate  amount of the Losses suffered by Buyer Indemnified Parties exceeds on a cumulative basis an  amount equal to $750,000 (the “ Threshold ”), at which time the Buyer Indemnified Parties shall  be  entitled  to  be  indemnified  against  the  aggregate  amount  of  Losses,  regardless  of  the  Threshold, and (ii) for an aggregate amount of Losses in excess of such Seller’s proportional  interest in the Purchase Price paid by Buyer (based on such Seller’s Pro Rata Portion).                   (b)   Except  for  Losses  in  respect  of  the  Excepted  Matters  or  resulting  from  fraud, willful misconduct, or intentional misrepresentation, Buyer shall not be liable to any Seller  Indemnified  Party  for  Losses  under  Section  7.2(c)(i),  (i)  unless  the  aggregate  amount  of  the  Losses suffered by the Seller Indemnified Parties exceeds on a cumulative basis the Threshold, at  which  time  such  Seller  Indemnified  Parties  shall  be  entitled  to  be  indemnified  against  the  aggregate  amount  of  Losses,  regardless  of  the  Threshold,  (ii)  with  respect  to  Medley  and  its  Representatives  collectively,  for  an  aggregate  amount  of  Losses  in  excess  of  Medley’s  proportional interest in the Purchase Price paid by Buyer (based on Medley’s Pro Rata Portion),  and (iii) with respect to GALIC and its Representatives collectively, for an aggregate amount of  Losses in excess of GALIC’s proportional interest in the Purchase Price paid by Buyer (based on  GALIC’s Pro Rata Portion).                (c)   For purposes of this Article VII, a breach of a representation or warranty  shall  be  deemed  to  exist  either  if  such  representation  or  warranty  is  actually  inaccurate  or  breached or would have been inaccurate or breached if such representation or warranty had not  contained  any  limitation  or  qualification  as  to  “materiality”,  “Material  Adverse  Effect”,  or  similar  language,  and  the  amount  of  Losses  in  respect  of  any  breach  of  representation  or  warranty,  including  any  deemed  breach  pursuant  to  this  clause,  shall  be  determined  without  regard  and  without  giving  effect  to  any  such  limitation  or  qualification  as  to  “materiality”,  “Material Adverse Effect”, or similar language set forth in such representation or warranty.                (d)   The  parties  shall  cooperate  with  each  other  to  resolve  any  Claim  with  respect  to  which  one  party  is  obligated  to  indemnify  the  other  party  hereunder,  including  by  making commercially reasonable efforts to mitigate or resolve any such Claim.                   (e)   No Indemnifying Party shall be liable pursuant to this Agreement for any   punitive or exemplary damages except to the extent awarded  in  connection  with  a  third  party   Claim.                (f)   The amount of any  Losses for which indemnification is  provided  under   this Agreement shall be net of  (A) insurance proceeds  actually  recovered  by  the  Indemnified   Party in respect of such Losses (net of any out-of-pocket costs incurred in connection with such   recovery  and  any  increases  in  premium)  and  (B)  recoveries  from  third  parties  pursuant  to   indemnification or otherwise (net of any out-of-pocket costs incurred in connection with such   recovery.                (g)   With respect to all matters other than the Syndicated Company Loans, the   right  to  indemnification,  payment  of  damages  and  other  remedies  based  on  representations,                                         28   





 






warranties, covenants and obligations contained in this Agreement shall not be affected by any  investigation conducted or any knowledge acquired (or capable of being acquired) at any time,  whether  before  or  after  the  Closing  Date,  with  respect  to  the  accuracy  or  inaccuracy  of  or  compliance with any such representation, warranty, covenant or obligation.  With respect to all  matters relating to the Syndicated Company Loans, to the extent Buyer or any of its Affiliates  has knowledge, after due inquiry and investigation, prior to the Closing, of a fact, circumstance  or event related to such Company Loan that is a Syndicated Company  Loan or to a Borrower  under a Syndicated Company Loan, such fact, circumstance or event shall be deemed disclosed  by  Sellers  to  Buyer  for  all  purposes  hereunder  and shall  not  be  the  basis  for  any  claim  to  indemnification, payment of damages or any other remedy under this Agreement.  The parties  agree that due inquiry and investigation of Buyer and its Affiliates shall not require inquiry of  any Person that is not an Affiliate of Buyer or an officer, director, employee or representative of  Buyer  or  an  Affiliate  of  Buyer,  does  not  extend  beyond  any  such  individual’s  areas  of  responsibility or such individual’s direct reports (both senior and junior), and does not require  inquiry or investigation beyond the books and records of Buyer or any Affiliate of Buyer other  than information made available to such Person by way of a virtual data room with respect to the  Syndicated Company Loans as of the Business Day immediately prior to the Closing.             7.6   Waiver. The remedies provided for in this Article VII shall be exclusive and shall              preclude assertion by any Indemnified Party of any other rights or the seeking of              any and all other remedies against the Indemnifying Party for claims based on this              Agreement  (regardless  of  the  theory,  whether  in  contract,  at  law,  in  equity  or              otherwise), other than for (a) actions for specific performance or other equitable              remedies (but not rescission) referred to in Section 9.10 or (b) Losses arising out              of or relating to fraud, willful misconduct or intentional misrepresentation.  Each              party hereby waives any provision of Applicable Law to the extent that it would              limit or restrict the agreement contained in this Section 7.6.   For the avoidance of              doubt, this Section 7.6  shall not limit the ability of any party from making  any              claim  arising  out  of  or  relating  to  fraud,  willful misconduct  or  intentional              misrepresentation.                                    ARTICLE VIII                                 DEFINED TERMS          8.1   For purposes of this Agreement, the following terms shall have the meanings set   forth below:           “Acquired Companies ” means the Company, MCC Holdings and MCC SPV.           “Affiliate ”  means,  with  respect  to  any  Person,  any  other  Person  directly  or  indirectly   controlling, controlled by, or under common control with such Person. The term “control” means   possession, directly or indirectly, of the power to direct or cause the direction of the management   and policies of such Person, whether through the ownership of voting securities, by contract or   otherwise;  provided,  however,  that  in  no  event  shall  a  portfolio  company  of  an  Acquired  Company, whether an Existing Portfolio Company or otherwise, be deemed to be an Affiliate of  an Acquired Company.                                          29   





 






      “Affiliated Group ” means an affiliated group as defined in Section 1504 of the Code (or  any analogous combined, consolidated or unitary group defined under state, local or non-U.S.  Law relating to income Tax) of which an Acquired Company is or has been a member.         “Agreement ” has the meaning set forth in the preamble to this Agreement.          “Allocation Schedule ” has the meaning set forth in Section 2.3(a)(i).         “Anti-Corruption Laws ” has the meaning set forth in Section 4.12(c).          “Applicable  Law ”  means,  with  respect  to  a  specified  Person,  any  federal,  state,  local,  municipal,  or  foreign  constitution,  treaty,  law  (including  the  common  law),  statute,  code,  ordinance,  rule,  regulation,  permit,  approval,  judgment,  Order,  writ,  decree,  injunction,  resolutions or requirements (collectively, “ Laws ”) applicable to the specified Person.         “Borrowers ” means those Persons who constitute “borrowers” (or any similarly defined  entity) under the Company Loan Documents.         “Business  Day ”  means  a  day,  other  than  Saturday,  Sunday  or  other  day  on  which  commercial  banks  in  New  York,  New  York  are  authorized  or  required  by  Applicable  Law  to  close.         “Buyer ” has the meaning set forth in the preamble to this Agreement.          “Buyer Indemnified Parties ” has the meaning set forth in Section 7.2(a).          “Buyer Prepared Tax Return ” has the meaning set forth in Section 2.3(b).          “Cash and Cash Equivalents ” means, without double counting, the aggregate amount of  all cash and cash equivalents of the Acquired Companies as of the Closing Date.          “Claim ” has the meaning set forth in Section 7.3(a).         “Closing ” has the meaning set forth in Section 2.1.         “Closing Date ” has the meaning set forth in Section 2.1.         “Code ” means the United States Internal Revenue Code of 1986, as amended.         “Company  Loan  Documents ”  means  the  loan  agreements,  credit  and  financing  agreements,  indentures,  guarantees,  subordination  agreements,  Company  Loan  Notes,  note  purchase  agreements,  mortgages,  deeds  of  trust,  security  agreements  (including  pledge  and  control agreements), financing statements, intercreditor agreements, mortgage, sale and servicing  agreements,  acquisition  agreements,  intercreditor  agreements  and  other  instruments,  insurance  policies,  assumption  or  substitution  agreements,  side  letters  and  documents  affecting  the  Acquired Companies’ ownership, economic or other rights with respect to the Company Loans  or in which an Acquired Company has an interest, in connection with the Company Loans, in  each case, together with all amendments and modifications thereto and any reports or documents                                         30   





 






delivered  to  an  Acquired  Company  in  its  capacity  as  a  lender  or  noteholder  under  any  such  agreement.         “Company Loan Notes ” means the original executed promissory notes (or copies, to the   extent that only copies of such promissory notes are in an Acquired Company’s possession or   control) issued to the order of an Acquired Company, or copies of a “master” note if no such   note was issued to an Acquired Company or an allonge endorsing a note in favor of an Acquired   Company, evidencing indebtedness owing to an Acquired Company under a Company Loan.          “Company Loans ” means the loans owned by the Acquired Companies as of the Closing   Date.          “Company-Owned  Equity  Interests ”  means  the  Equity  Interests  identified  on  Section  4.10(a) of the Seller Disclosure Schedule as owned by the Acquired Companies.         “Confidentiality Agreement ” means that certain Confidentiality Agreement, dated as of  June 3, 2020, by and between Medley and Golub Capital LLC.          “Consent ” means any consent of the Borrower, the administrative agent, the issuer, any   co-investor or other Person required to sell, assign, transfer, convey or deliver the Membership   Interests.          “Contemplated Transactions ” means the transactions contemplated by this Agreement.          “Contract ” means any contract, lease, sublease, license, permit, purchase and sale order,   instrument,  note  and  any  other  agreement,  commitment  or  binding  arrangement  or   understanding, whether written or oral.          “DB Credit Facility ” means the credit facility provided to the Acquired Companies under   the DB Loan Documents.          “DB Loan Documents ” means, collectively, that certain Loan and Servicing Agreement,   dated as of August 4, 2015, by and among MCC SPV, as Borrower, the Company, as Servicer   and as Originator, each Lender from time to time party thereto, each Lender Agent from time to   time party thereto, U.S. Bank National Association, as the Collateral Agent, Account Bank and   Collateral  Custodian,  and  Credit  Suisse  AG,  Cayman Islands  Branch,  as  the  Administrative   Agent,  and  each  document,  instrument  or  agreement  entered  into  in  connection  with  the   foregoing, in each case, as amended, amended and restated, supplemented or otherwise modified   from time to time.          “Enforceability Exception ” has the meaning set forth in Section 3.2(a).         “Equity  Governing  Documents ”  means,  with  respect  to  a  Company-Owned  Equity  Interest,  the  Organizational  Document,  option  or  warrant  agreement,  registration  rights  agreement, buy-sell arrangement and any other document that governs or otherwise affects the  terms of any Company-Owned Equity Interest.                                          31   





 






      “Equity  Interest ”  means  (a)  any  partnership  interests,  (b)  any  membership  interests  or  units, (c) any units of capital stock, (d) any other interest or participation that confers on a Person  the right to receive a unit of the profits and losses of, or distribution of assets of, the issuing  entity, including any stock appreciation, phantom stock, profit participation or similar rights, (e)  any subscriptions, calls, warrants, options, or commitments of any kind or character relating to,  or entitling any Person or entity to purchase or otherwise acquire membership interests or units,  capital stock, or any other equity securities, (f) any securities convertible into or exercisable or  exchangeable for partnership interests, membership interests or units, capital stock, or any other  equity securities, or (g) any other interest classified as an equity security of a Person.         “Excepted Matters ” has the meaning set forth in Section 7.1.          “Ex-Im Laws ” means all U.S. and non-U.S. Laws relating to export, reexport, transfer,  and import controls, including, without limitation, the Export Administration Regulations, the  customs and import Laws administered by U.S. Customs and Border Protection, the EU Dual  Use Regulation (428/2009), all equivalent or similar legislation to the foregoing implemented by  EU Member States, and the UK’s Export Control Order 2008.         “Existing Portfolio Company ” means any portfolio company of the Acquired Companies  listed on Sections 4.9(a) and 4.10(a) of the Seller Disclosure Schedule.         “Financial Statements ” has the meaning set forth in Section 4.5(a).          “GAAP  ”  means  United  States  generally  accepted  accounting  principles,  consistently   applied.          “GALIC ” has the meaning set forth in the preamble to this Agreement.           “GALIC Interests ” has the meaning set forth in the recitals to this Agreement.           “Governmental  Entity ”  means  any  federal,  state  or  local  government,  nation,  state,   province,  territory,  district  or  any  court,  administrative  or  regulatory  agency  or  commission,   arbitrator, mediator, tribunal or other governmental or quasi-governmental authority or agency,   department, bureau, office, commission, organization, official or authority domestic or foreign.          “Indebtedness ”  means  with  respect  to  a  Person,  without  duplication,  all  Liabilities,   contingent or otherwise, in respect of: (a) borrowed money or issued in exchange or substitution   for borrowed money (including any prepayment costs and penalties associated with prepayment   of such Liabilities), (b) any indebtedness evidenced by any note, bond, debenture or other debt   security,  (c)  all  amounts  due  and  payable  under  or obligations  in  respect  of  letters  of  credit,   bankers’  acceptances,  bank  overdrafts,  surety  and  performance  bonds  or  similar  facilities  and   financial guarantees issued for the account of such Person, (d) capitalized lease obligations, (e)   the  deferred  purchase  price  of  assets,  services  or securities  (other  than  trade  accounts  payable   incurred  in  the  ordinary  course  of  business),  (f)  interest  rate  protection  agreements  or  any   interest,  currency  or  other  hedging,  swap,  derivative  or  similar  hedging  agreements,  (g)   conditional  sale  or  other  title  retention  agreements,  (h)  interest,  premium,  penalties  and  other   amounts owing in respect of the items listed in the  foregoing  clauses  (a)  through  (g),  and  (i)   guarantees and surety and other similar agreements of such Person of any of the foregoing of any                                         32   





 






other  Person,  including  guarantees  in  the  form  of  an  obligation  to  repurchase  or  reimburse,  whether or not any of the foregoing would appear on a consolidated balance sheet prepared in  accordance  with  GAAP,  and  any  fees,  penalties  or  accrued  and/or  unpaid  interest  on  the  foregoing.         “Indemnified  Party ”  means  the  Person  or  Persons  entitled  to,  or  claiming  a  right  to,   indemnification under Article VII.          “Indemnifying Party ” has the meaning given to it in Section 7.3(a).         “Independent Accountant ” means an independent accounting firm of national reputation.          “Interim Financial Statements ” has the meaning set forth in Section 4.5(a).          “IRS ” means the United States Internal Revenue Service.          “Knowledge  of  Medley ”  or  “ Medley’s  Knowledge ”  means  the  knowledge  of  Richard   Allorto,  Howard  Liao,  Nathan  Bryce  and  Dean  Crowe, after  due  inquiry  and  investigation,   together  with  any  knowledge  (a)  that  such  person  could  have  been  expected  to  discover  or   otherwise become aware of in the course of such due inquiry and investigation, and (b) that has   been  made  available  to  any  such  person,  including  by  way  of  a  virtual  data  room,  as  of  the   Closing with respect to the Company Loans (other than the Syndicated Company Loans).  For   purposes  of  this  definition,  due  inquiry  and  investigation  of  any  individual  listed  in  this   definition shall not require inquiry of any Person that is not an Affiliate of Medley, Medley LLC   or  an  officer,  director,  employee  or  representative  of  Medley,  Medley  LLC  or  an  Affiliate  of   Medley or Medley LLC, does not extend beyond such individual’s areas of responsibility or such   individual’s direct reports (both senior and junior) and does not require inquiry or investigation   beyond the books and records of Medley, Medley LLC or any Affiliate of Medley LLC other   than  information  made  available  by  way  of  a  virtual  data  room,  as  of  the  Business  Day   immediately prior to Closing.            “Laws ” has the meaning set forth in the definition of Applicable Law.          “Liability ”  or  “ Liabilities ”  means  a  liability,  Indebtedness,  obligation,  commitment,   expense, claim or cause of action (of any kind or nature whatsoever, whether absolute, accrued,   contingent or other, and whether known or unknown).          “Liens” means liens, pledges, charges, mortgages, license, option, right of first refusal,   claims and security interests and similar encumbrances.          “Losses ” has the meaning set forth in Section 7.2(a).          “Material Adverse Effect ” means any occurrence, change, event, state of facts, effect or  development  that,  individually,  or  taken  together  with  all  other  occurrences,  changes,  events,  effects or developments, (a) has or would reasonably be likely to have a material adverse effect  on  the  condition  (financial  or  otherwise),  results of  operations,  properties,  assets  (including,  without limitation, the Company Loans and Company-Owned Equity Interests) or business of the  Acquired Companies taken as a whole; provided, however, that, with respect to this subsection                                         33   





 






(a), the determination of whether a  “Material  Adverse Effect” exists or has occurred shall not  include  effects  to  the  extent  attributable  to  (i)  changes,  after  the  date  hereof,  in  GAAP  or  regulatory accounting requirements applicable generally to companies in the industry in which  the Acquired Companies operate, (ii) changes, after the date hereof, in laws, rules or regulations  of general applicability to companies in the industry in which the Acquired Companies operate,  (iii) changes  in global or national political conditions or general economic or market conditions  generally affecting other companies in the industry in which the Acquired Companies operate,  (iv)  conditions  arising  out  of  acts  of  terrorism,  war,  weather  conditions,  pandemics  or  other  similar events, or (v) the public disclosure of this Agreement or the Contemplated Transactions  or any action required to be taken in accordance with this Agreement (other than covenants to  operate in the ordinary course of business), except, with respect to clauses (i), (ii), (iii) and (iv),  to  the  extent  that  the  effects  of  such  change  are  disproportionately  adverse  to  the  condition  (financial or otherwise), results of operations, properties, assets (excluding, without limitation,  the Syndicated Company Loans) or business of the Acquired Companies, taken as a whole, as  compared to other companies in the industry in which the Acquired Companies operate, or (b)  with  respect  to  either  Seller  or  Buyer,  has  or  would  reasonably  be  expected  to  prevent  or  materially delay the ability of either Seller or Buyer, as applicable, to timely consummate the  Contemplated  Transactions  or  otherwise  perform  their  respective  obligations  under  the  Transaction Documents.         “MCC Holdings ” has the meaning set forth in Section 4.1(d).         “MCC SPV  ” has the meaning set forth in Section 4.1(d).          “Medley ” has the meaning set forth in the preamble to this Agreement.          “Medley Interests ” has the meaning set forth in the recitals to this Agreement.           “Membership Interest Assignment ” has the meaning in Section 2.2(a)(i).          “NYSE  ” means the New York Stock Exchange.         “OFAC  ” has the meaning set forth in the definition of Sanctioned Person.           “Order ” means any final award, injunction, judgment, order, ruling, assessment, decree,   writ, determination or verdict entered or issued by any court of Governmental Entity pertaining   to any action, suit, proceeding, arbitration, mediation, audit or investigation.           “Organizational  Documents ”  means,  with  respect  to  a  Person  other  than  a  natural   person, (a) the articles or certificate of incorporation and the bylaws of a corporation; (b) the   certificate  of  formation  and  operating  agreement  of  a  limited  liability  company;  (c)  the   partnership agreement and any statement of partnership of a general partnership; (d) the limited   partnership agreement and the certificate of limited partnership of a limited partnership; (e) any   charter  or  similar  document  adopted  or  filed  in  connection  with  the  creation,  formation,  or   organization  of  any  other  Person;  (f)  any  stockholder  or  similar  agreement  among  holders  of   securities of an issuer; and (g) any amendment to any of the foregoing.          “Payoff Letter ” has the meaning set forth in Section 2.2(a)(vii).                                          34   





 






      “Permit ” means any license, permit, variance, exemption, franchise,  consent, approval,   authorization, qualification, or Order of any Governmental Entity.         “Person ”  means  an  individual,  corporation,  partnership,  limited  liability  company,  association,  trust,  sole  proprietorship,  unincorporated  organization,  other  entity,  organization,  group (as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended), or any  other  business  entity  or  any  Governmental  Entity,  including  a  government  or  political  subdivision or an agency or instrumentality thereof.         “Post-Closing Tax Period ” means any taxable period beginning after the Closing Date  or,  with  respect  to  Straddle  Period,  the  portion  of  such  Straddle  Period  beginning  after  the  Closing Date.         “Pre-Closing  Tax  Period ” means any taxable period ending at or prior to the  Closing  Date or, with respect to any Straddle Period, the portion of such Straddle Period ending at the  Closing Date.         “Pre-Closing  Taxes ”  means  (a)  any  Taxes  (or  the  non-payment  thereof) of,  or  with  respect to, an Acquired Company for any Pre-Closing Tax Period (determined for any Straddle  Period  in  accordance  with  the  principles  set  forth in  Section  2.3(c)),  including  any  Tax  assessment resulting from application of the centralized partnership audit regime enacted by the  Bipartisan Budget Act of 2015 and any partnership tax withholding obligations, and (b) all Taxes  of any Person for a Pre-Closing Tax Period for which  an  Acquired  Company  is  liable  under  Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or federal Law),  as a transferee or successor, under any Tax agreement or by contractual obligation (other than  Contracts entered into in the ordinary course of business and not primarily related to Taxes).          “Pro Rata Portion ” has the meaning set forth in Section 1.1(a).          “Proceeding ”  means  any  action,  claim,  arbitration,  audit,  hearing,  investigation,   litigation,  suit  or  other  proceeding  (whether  civil,  criminal,  administrative,  investigative,  or   informal) commenced, brought, conducted, or heard by or before, or otherwise involving, any   court or other Governmental Entity or referee, trustee, arbitrator or mediator.          “Purchase Price ” has the meaning set forth in Section 1.1(b).         “Purchase Price Certificate ” has the meaning set forth in Section 1.1(b).         “Representative ” means, with respect to any Person, its Affiliates, directors, managers,  officers,  employees,  attorneys,  accountants,  financing  sources,  financial  advisors,  agents,  consultants or other representatives.         “Response Period ” has the meaning set forth in Section 7.3(a).          “Sanctioned Country ” means any country or region that is, or has been in the last five (5)  years, the subject or target of a comprehensive embargo under Sanctions Laws (including Cuba,  Iran, North Korea, Sudan, Syria, and the Crimea region of Ukraine).                                         35   





 






      “Sanctioned  Person ”  means  any  individual  or  entity  that  is  the  subject  or  target  of   sanctions or restrictions under Sanctions Laws or Ex-Im Laws, including: (a) any individual or   entity listed on any applicable U.S. or non-U.S. sanctions- or export-related restricted party list,   including,  without  limitation,  the  U.S.  Department of  the  Treasury  Office  of  Foreign  Assets   Control’s  (“ OFAC ”)  Specially  Designated  Nationals  and  Blocked  Persons  List;  the  EU  Consolidated List and the UK’s Consolidated List of Persons Subject to Financial Sanctions; (b)  any entity that is, in the aggregate, fifty percent (50%) or greater owned, directly or indirectly, or  otherwise controlled by a Person or Persons described in clause (a); (c) any individual or entity  acting on behalf of or at the direction of any Persons described in clauses (a) or (b); or (d) any  national of a Sanctioned Country.         “Sanctions  Laws ”  means  all  U.S.  and  non-U.S.  Laws  relating  to  economic  or  trade  sanctions, including, without limitation, the Laws administered or enforced by the United States  (including by OFAC or the U.S. Department of State), the United Nations Security Council, the  European Union, the United Kingdom and all other applicable EU Member States.         “SEC ” means the United States Securities and Exchange Commission.         “Securities Act ” means the Securities Act of 1933, as amended.         “Seller ” has the meaning set forth in the preamble to this Agreement.         “Seller  Disclosure  Schedule ”  means  that  certain  disclosure  schedule  delivered by  the  Sellers to Buyer prior to the execution of this Agreement, which schedule sets forth, among other  things, items the disclosure of which is necessary or appropriate either in response to an express  disclosure  requirement  contained  in  Articles  III  and  IV  or  as  an  exception  to  one  or  more  representations or warranties contained in Articles III and IV, or to one or more of the Sellers’  covenants contained in this Agreement, to the extent the relevance of such disclosure to such  section or subsection is reasonably apparent on its face.          “Seller Indemnified Parties ” has the meaning set forth in Section 7.2(c).          “Seller Prepared Tax Return ” has the meaning set forth in Section 2.3(b).          “Solvent ”  means,  at  any  time  with  respect  to  any  Person,  on  the  applicable  date  of   determination,  such  Person  (a)  is  able  to  pay  its  debts  as  they  mature  and  has  (and  has  a   reasonable basis to believe it will continue to have) sufficient capital (and not unreasonably small   capital) to carry on its business consistent with its practices as of the Closing Date, and (b) the   assets and properties of such Person at a fair valuation (and including as assets for this purpose at   a fair valuation all rights of subrogation, contribution or indemnification arising pursuant to any   guarantees given by such Person) are greater than the Indebtedness of such Person, and including   subordinated  and  contingent  liabilities  computed  at  the  amount  which,  such  Person  has  a   reasonable basis to believe, represents an amount which can reasonably be expected to become   an actual or matured liability (and including as to contingent liabilities arising pursuant to any   guarantee the face amount of such liability as reduced to reflect the probability of it becoming a   matured liability).                                          36   





 






      “Straddle  Period ”  means  any  taxable  period  beginning  before  the  Closing  Date  and  ending after the Closing Date.          “Subsidiary ”  means,  with  respect  to  any  Person,  any  corporation,  company,  limited  liability company, partnership, association, or other business entity of which (a) if a corporation  or a company, a majority of the total voting power of shares of stock entitled (without regard to  the occurrence of any contingency) to vote in the election  of  directors,  managers,  or  trustees  thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more  of the other Subsidiaries of such Person or a combination  thereof  or  (b)  if  a  limited  liability  company,  partnership,  association,  or  other  business  entity  (other  than  a  corporation  or  a  company), a majority of the partnership or other similar ownership interests thereof is at the time  owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of such  Person  or  a  combination  thereof  and  for  this  purpose,  a  Person  or  Persons  own  a  majority  ownership  interest  in  such  a  business  entity  (other  than  a  corporation  or  a  company)  if  such  Person or Persons shall be allocated a majority of such business entity’s gains or losses or shall  be a, or control any, managing director or general partner of such business entity (other than a  corporation  or  a  company);  provided,  however,  the  term  “Subsidiary”  shall  not  include  any  portfolio  company  of  the  Acquired  Companies,  whether  an  Existing  Portfolio  Company  or  otherwise.         “Syndicated Company Loans ” means the Company Loans that are set forth on Section  8.1 of the Seller Disclosure Schedule.         “Tax ” or “Taxes ”  means  (a)  all  federal,  state,  local,  and  foreign income,  excise,  gross  receipts,  recording,  gross  income,  ad  valorem,  profits,  gains,  property,  stamp,  capital,  sales,  transfer, use, payroll, employment, severance, withholding, social security (or similar including  FICA),  customs,  duties,  intangibles,  franchise,  backup  withholding,  escheat  or  unclaimed  property,  registration,  value  added,  alternative  or  add-on  minimum,  estimated,  and  any  other  taxes, charges, levies or like assessments in the nature of or similar to taxes, together with all  penalties and additions to tax and interest thereon, in each case whether disputed or not and (b)  any liability for Taxes described in clause (a) above for the payment of any amounts as a result  of being liable for another Person’s taxes as a transferee or successor, by contract or otherwise.         “Tax Return ” means, with respect to a Person, a report, return, election, declaration, or   other  information  or  statement  (including  any  amendments  thereof  and  attachments  thereto)   supplied or required to be supplied to a Governmental Entity with respect to Taxes including,   where  permitted  or  required,  combined  or  consolidated  returns  for  any  group  of  entities  that   includes the Person or any of its Subsidiaries.          “Threshold ” has the meaning set forth in Section 7.5(a).         “Trade Control Law ” has the meaning set forth in Section 4.12(b).          “Transaction Documents ” means this Agreement, the Membership Interest Assignment  Agreements and any other document or certificate executed and delivered in connection with the  foregoing.                                           37   





 






      “Transfer  Taxes ”  means,  collectively,  all  federal,  state,  local  foreign  transfer,   documentary, excise, sales, use, value added, registration, stamp, recording, property and similar   Taxes or fees, including any penalties and interest.                                     ARTICLE IX                              GENERAL PROVISIONS         9.1   Expenses. Except as provided in Section 2.3(f) with respect to Transfer Taxes, the  Sellers  shall  bear  their  (and  the  Company’s)  costs,  fees  and  expenses,  including  attorney,  investment banker, broker, accountant and other representative and consultant fees, incurred in  connection  with  the  execution  and  negotiation  of  the  Transaction  Documents  and  the  consummation of the transactions contemplated hereby and thereby; and Buyer shall bear its own  costs,  fees  and  expenses,  including  attorney,  investment  banker,  broker,  accountant  and  other  representative and consultant fees, incurred in connection with the execution and negotiation of  the Transaction Documents and the consummation of the transactions contemplated hereby and  thereby.             9.2   Notices. All notices, demands or other communications to be given or delivered  under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to  have  been  given  (a)  when  delivered  personally  to  the  recipient,  (b)  when  sent  by  facsimile,  electronic  mail  or  other  electronic  transmission  followed  by  personal  delivery,  delivery  by  certified mail or delivery by reputable overnight courier service, on the date sent by facsimile if  sent during normal business hours and the next Business Day if sent after normal business hours,  or (c) one Business Day after being sent to the recipient by reputable overnight courier service  (charges prepaid). Such notices, demands and other communications shall be sent to Buyer, the  Company  or  the  Sellers  at  the  addresses  indicated  below  or  to  such  other  address  or  to  the  attention of such other Person as the recipient party has specified by prior written notice to the  sending party:               (a)   if to the Sellers, to:                     Medley Capital Corporation                    375 Park Avenue, 33rd Floor                    New York, NY 10152                    Attention: Richard Allorto                     e-mail: richard.allorto@mdly.com                     with a copy to:                     Kramer Levin Naftalis & Frankel LLP                    1177 Avenue of the Americas                    New York, NY  10036                     Attention: George Silfen; David S. Berg                     e-mail: gsilfen@kramerlevin.com ;                                dberg@kramerlevin.com                                                                 38   





 






                  Great American Life Insurance Company                    301 East Fourth Street, 27th Floor                    Cincinnati, Ohio 45202                    Attention: Chester M. Eng and John S. Fronduti                     e-mail: ceng@amfin.com; jfronduti@afmin.com               (b)   if to Buyer or the Company, to:                     Golub Capital LLC                    200 Park Avenue                    New York, NY 10166                    Attention: Spyro Alexopoulos; Benjamin Guilford                    e-mail: salexopoulos@golubcapital.com;                          bguilford@golubcapital.com                     with a copy to:                     Proskauer Rose LLP                    Eleven Times Square                    New York, NY 10036                    Attention: Justin Breen; William J. Tuttle                    e-mail: JBreen@proskauer.com; WTuttle@proskauer.com         9.3   Interpretation. When a reference is made in this Agreement to Articles, Sections,  Exhibits or Schedules, such reference shall be to an Article or Section of or Exhibit or Schedule  to  this  Agreement  unless  otherwise  indicated.  References  to  documents,  instruments  or  agreements shall be deemed to refer as well to all addenda, exhibits and schedules thereto.  The  table of contents and headings contained in this Agreement are for reference purposes only and  shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words  “include,”  “includes”  or  “including”  are  used  in  this  Agreement,  they  shall  be  deemed  to  be  followed by the words “without limitation.” The Seller Disclosure Schedule, as well as all other  schedules and all exhibits hereto, shall be deemed part of this Agreement and included in any  reference to this Agreement. This Agreement shall not be interpreted or construed to require any  person to take any action, or fail to take any action, if to do so would violate any Applicable  Law.  When used, the singular number includes the plural number and vice versa.  Reference to  any  agreement,  document  or  instrument  means  such  agreement,  document  or  instrument  as  amended,  modified,  supplemented,  restated  or  replaced  and  in  effect  from  time  to  time  in  accordance with the terms thereof and reference to any promissory note includes any promissory  note that is an extension or renewal thereof or a substitute or replacement therefor.  Reference to  any law means such law as amended, modified, codified, replaced or reenacted, in whole or in  part, and in effect from time to time, including rules and regulations promulgated thereunder, and  reference to any section or other provision of any law means that provision of such law from  time to time in effect and constituting the substantive  amendment,  modification,  codification,  replacement  or  reenactment  of  such  section  or  other  provisions.   “Hereunder,”  “hereof,”  “hereto,” and words of similar import shall be deemed references to this Agreement as a whole  and not to any particular section or other provision hereof.  The words “asset” and “property”                                          39   





 






shall be construed as having the same meaning and effect and to refer to any and all tangible and  intangible assets and properties, including cash, securities, accounts and contract rights.            9.4   Counterparts; Delivery by Facsimile or PDF.  This Agreement may be executed in  one or more counterparts (including by means of telecopied signature pages or signature pages  delivered  by  electronic  transmission  in  portable  document  format  (pdf)),  all  of  which  taken  together shall constitute one and the same instrument. This Agreement and any signed agreement  or instrument entered into in connection with this Agreement,  and  any  amendments  hereto  or  thereto,  to  the  extent  signed  and  delivered  by  means  of  a  facsimile  machine  or  electronic  transmission in portable document format (pdf), shall be treated in all manner and respects as an  original agreement or instrument and shall be considered to have the same binding legal effect as  if it were the original signed version thereof delivered in person.  No party hereto or to any such  agreement or instrument shall raise the use of a facsimile machine or electronic transmission in  portable document format (pdf) to deliver a signature or the fact that any signature or agreement  or  instrument  was  transmitted  or  communicated  through  the  use  of  a  facsimile  machine  or  electronic  transmission  in  portable  document  format (pdf) as  a defense to the formation of  a  contract and each such party forever waives any such defense, except to the extent such defense  related to lack of authenticity.         9.5   Entire Agreement. This Agreement (including the documents and the instruments  referred to in this Agreement), together with the Confidentiality Agreement, constitutes the entire  agreement  and  supersedes  all  prior  agreements  and  understandings,  both  written  and  oral,  between  the  parties  with  respect  to  the  subject  matter  of  this  Agreement,  other  than  the  Confidentiality Agreement.         9.6   Governing Law; Jurisdiction.                (a)   This Agreement and all claims or causes of action (whether  in  contract,   tort or statute) that may be based upon, arise out of or relate to this Agreement or the negotiation,   execution or performance of this Agreement (including any claim or cause of action based upon,   arising  out  of  or  related  to  any  representation  or warranty made in or in connection with this   Agreement  as  an  inducement  to  enter  this  Agreement)  shall  be  governed  and  construed  in   accordance with the internal laws of the State of Delaware.                 (b)   The  parties  hereto  agree  that  any  Proceeding  brought  by  either  party  to   enforce  any  provision  of,  or  based  on  any  matter  arising  out  of  or  in  connection  with,  this   Agreement  or  the  Contemplated  Transactions  shall  be  brought  in  any  federal  or  state  court   located in the County of New York, State of New York. Each of the parties hereto submits to the   jurisdiction of any such court in any Proceeding seeking to enforce any provision of, or based on   any  matter  arising  out  of,  or  in  connection  with,  this  Agreement  or  the  Contemplated   Transactions and hereby irrevocably waives the benefit of jurisdiction derived from present or   future domicile or otherwise in such Proceeding. Each  party  hereto  irrevocably  waives,  to  the   fullest extent permitted by law, any objection that it may now or hereafter have to the laying of   the venue of any such Proceeding in any such court or that any such Proceeding brought in any   such court has been brought in an inconvenient forum.                                          40   





 






      9.7   Waiver of Jury Trial. Each party acknowledges and agrees that any controversy  which may arise under this Agreement is likely to involve complicated and difficult issues, and  therefore  each  such  party  hereby  irrevocably  and  unconditionally  waives  any  right  such  party  may have to a trial by jury in respect of any litigation directly  or indirectly  arising out of or  relating  to  this  Agreement  or  the  Contemplated  Transactions.  Each  party  certifies  and  acknowledges  that  (a)  no  Representative  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, (b) each party understands and has considered the implications of this waiver,  (c) each party makes this waiver voluntarily and (d) each party has been induced to enter into  this Agreement by, among other things, the mutual waivers and certifications in this Section 9.7.         9.8   Publicity. Neither the Sellers nor Buyer shall, and neither the Sellers nor Buyer  shall permit any of their respective Subsidiaries to, issue or cause the publication of any press  release or other public announcement with respect to, or otherwise make any public statement  concerning, the Contemplated Transactions or otherwise disclose the terms of the Contemplated  Transaction, without the prior consent  (which consent  shall  not  be  unreasonably  withheld)  of  Buyer, in the case of a proposed announcement or statement by either Seller, or Medley, in the  case of a proposed announcement or statement by Buyer; provided, however, that Medley may,  without the prior consent of Buyer (but after prior consultation with Buyer and opportunity to  reasonably  comment)  issue  or  cause  the  publication of  any  press  release  or  other  public  announcement to the extent required by Applicable Law or by the rules and regulations of the  NYSE.         9.9   Assignment;  Third  Party  Beneficiaries.  Neither  this  Agreement  nor  any  of  the  rights, interests or obligations under this Agreement shall be assigned by either of the parties  (whether by operation of law or otherwise) without the prior written consent of the other party.  Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of  and  be  enforceable  by  each  of  the  parties  and  their  respective  successors  and  assigns.  This  Agreement  (including  the  documents  and  instruments referred  to  in  this  Agreement)  is  not  intended  to  and  does  not  confer  upon  any  person  other  than  the  parties  hereto  any  rights  or  remedies  under  this  Agreement  except,  with  respect to  Article  VII,  the  Indemnified  Parties.  Buyer  and  the  Sellers  hereby  agree  that  their  respective  representations,  warranties  and  covenants set forth herein are solely for the benefit of the other parties hereto, in accordance with  and subject to the terms of this Agreement, and this Agreement is not intended to, and does not,  confer upon any person other than the parties hereto any rights or remedies hereunder, including,  without limitation, the right to rely upon such representations and warranties set forth herein. The  representations  and  warranties  in  this  Agreement  are  the  product  of  negotiations  among  the  parties hereto and are for the sole benefit of the parties hereto.           9.10  Remedies.               (a)   Except  as  otherwise  provided  in  this  Agreement,  any  and  all  remedies  herein expressly conferred upon a party will be deemed cumulative with and not exclusive of any  other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party  of any one remedy will not preclude the exercise of any other remedy.                                          41   





 






            (b)   The parties hereto agree that if any provision of this Agreement were not  performed  in  accordance  with  the  terms  hereof  or  is  otherwise  breached,  irreparable  damage  would occur, money damages would not provide an adequate remedy at law and damages would  be difficult to determine. Accordingly, it is agreed that the party or parties not in breach shall be  entitled  to  an  injunction  or  injunctions  to  prevent  breaches  of  this  Agreement  or  to  enforce  specifically the performance of the terms and provisions hereof in any court specified in Section  9.6, in addition to any other remedy to which they are entitled at law or in equity. The parties  hereto hereby waive, in any such action for specific performance, the defense of adequacy of a  remedy  at  law,  the  posting  of  any  bond  or  other  security  in  connection  therewith  and  the  necessity of proving actual harm.         9.11  Amendments; Waivers. No modification, amendment or waiver of any provision  of, or consent required by, this Agreement shall be effective unless it is in writing and signed by  the parties hereto.  Any modification, amendment, waiver or consent shall be effective only in  the specific instance and for the purpose for which it is given.          9.12  Severability. In the event that any provision of this Agreement as applied to any  party  or  to  any  circumstance  shall  be  adjudged  by  a  court  to  be  void,  unenforceable  or  inoperative as a matter of law, then the same shall in no way affect any other provision in this  Agreement, the application of such provision in any other circumstance or with respect to any  other party, or the validity of enforceability of this Agreement as a whole.          9.13  Schedules.  The  information  disclosed  in  any  numbered  or  lettered  part  of  any  Seller  Disclosure  Schedule  shall  be  deemed  to  relate  to  and  shall  qualify  the  particular  representation  or  warranty  set  forth  in  the  corresponding  numbered  or  lettered  section  or  subsection  and  any  other  particular  representation or  warranty  to  the  extent  that  (a)  such  information  is  cross-referenced  in  another  part  of the  Seller  Disclosure  Schedules  or  (b)  it  is  reasonably apparent on the face of the disclosure (without reference to any document referred to  therein)  that  such  information  qualifies  another  representation  and  warranty  of  the  applicable  party in this Agreement. The inclusion of an item in a Seller Disclosure Schedule as an exception  to a representation or warranty shall not be deemed an admission by any party hereto that such  item represents an exception or material fact, event or circumstance or that such item constitutes  a Material Adverse Effect.  Without limiting the foregoing, no reference to or disclosure of a  possible breach or violation of any contract or applicable law shall be construed as an admission  or indication that such breach or violation exists or has actually occurred.  Any fact or item that  is disclosed in any Schedule in a way as to make its relevance or applicability to information  called for by any other  Schedule reasonably  apparent shall be deemed to be disclosed in such  other Schedule, notwithstanding the omission of a reference or cross-reference thereto.          9.14  Representation by Counsel. Each of the parties hereto acknowledges that it has  been  represented  by  independent  counsel  of  its  choice  throughout  all  negotiations  that  have  preceded the execution of this Agreement and that it has executed the same with consent and  upon the advice of said independent counsel. The parties hereto have participated jointly in the  negotiation and drafting of this Agreement. In the event an ambiguity or question of intent arises,  this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption  or burden of proof shall arise, or rule of strict constriction applied, favoring or disfavoring any  party hereto by virtue of the authorship of any of the provisions of this Agreement. Accordingly,                                         42   





 






any rule of law or any legal decision that would require interpretation of any ambiguities in this  Agreement  against  the  party  that  drafted  it  is  of  no  application  and  is  hereby  waived  by  the  parties hereto.                                          43   





 






                    IN WITNESS WHEREOF, the undersigned parties have caused this Agreement to be  executed by their respective signatories thereunto duly authorized as of the date first above  written.                                       SELLERS  :                                      MEDLEY CAPITAL CORPORATION                                                                             By:  /s/ Richard T. Allorto, Jr.                                            Name: Richard T. Allorto, Jr.                                           Title: Authorized Person                                      GREAT AMERICAN LIFE INSURANCE                                     COMPANY                                                                            By:  /s/ Mark F. Muething                                            Name: Mark F. Muething                                           Title: President                                      COMPANY    :                                      MCC SENIOR LOAN STRATEGY JV I LLC                                      BY:  MEDLEY CAPITAL CORPORATION, in                                           its capacity as a Member of the Company                                      By:  /s/ Richard T. Allorto, Jr.                                            Name: Richard T. Allorto, Jr.                                           Title: Authorized Person                                      BY:  GREAT AMERICAN LIFE INSURANCE                                           COMPANY, in its capacity as a Member of                                           the Company                                      By:  /s/ Mark F. Muething                                            Name: Mark F. Muething                                           Title: President                     [Signature Page to Membership Interest Purchase Agreement] 





 






                                               BUYER  :                    GEMS FUND 5, L.P.                    By: GC Advisors LLC, its Investment Manager                                        By:  /s/ Joshua M. Levinson                         Name: Joshua M. Levinson                         Title: Co-General Counsel and Chief                         Compliance Officer                        [Signature Page to Membership Interest Purchase Agreement] 





 






                                                                                                       APPENDIX A                                                             Membership Interests         Name of Seller       Membership    Allocation of    Pro Rata                             Interests   Purchase Price   Portion of                                           Payable to   Purchase Price                                              Sellers      Payable to                                                            Sellers  MEDLEY         CAPITAL       87.5%     $41,018,500.13    86.14 %  CORPORATION     GREAT  AMERICAN  LIFE        12.5%     $ 6,601,265.33    13.86%  INSURANCE COMPANY     Total:                       100%      $ 47,619,765.46    100%                                





 






                                                        Exhibit A               Purchase Price Calculation        [See Attached.]               





 






Project Maltese Projected Closing Waterfall                                                                            Memo                     Adj.                      Final Initial Gross Purchase Price                                                                                              $155,400,000.00 Principal Payments   Plus: Principal Fundings since Aug 13th through Oct. 2                                                 $0.00   Less: Principal Payoffs since Aug 13th through Oct. 2                                         (10,005,525.67)   Less: Principal Payoffs since Oct. 2 through Oct. 5                                                (8,750.00) Plus: Net Principal Changes                                                                                                 (10,014,275.67) Jul 1st - Sep 14th     Interest Income Accrued                                              $2,382,493.71     Interest Income Cash Received                                                                (1,351,246.22)     Cash Adj. for Receipts Outside of Period                                                        684,688.41     Interest Expense Accrued                                                (873,370.08)     Cash Adj. for Interest Expense Paid for Jul 1st - Aug 31                                        729,001.48   Net Interest Income                                                    $1,509,123.63   Purchase Price Adj.                                                                                                            62,443.67 Sep 15th - Oct 2nd     Interest Income Accrued through Oct. 2                                 $560,533.96              560,533.96     Interest Income Cash Received through Oct. 2                                                 (1,620,729.22)     Cash Adj. for Receipts Outside of Period through Oct. 2                                          17,162.70     Interest Expense Accrued through Oct. 2                                 (182,129.95)           (182,129.95)   Net Interest Income                                                      $378,404.01   Purchase Price Adj.                                                                                                        (1,225,162.51) Oct 3rd - Closing Est. Net Investment Income Adjustment ($18,663 Per Day)                                                        93,315.00 Working Capital   Plus: Other Current Assets at Oct. 7                                                                1,658.05   Less: Other Current Liabilities Oct. 7                                                                  0.00 Plus: Net Working Capital                                                                                                         1,658.05 Plus: Purchase Price Adjustment                                                                                               1,000,000.00 Adjusted Gross Purchase Price                                                                                             $145,317,978.54 Less: Deutsche Bank Payoff Amount (as of Oct. 7)                                                                           (111,319,482.48)   Deutsche Bank AG, New York Branch Fees                                                           (376,605.93)   Cadwalader, Wickersham & Taft LLP (Related to DB Line)                                            (15,000.00)   US Bank Interest Calculation                                                                       (5,075.63) Less: Other Deutsche Bank Payoff Fees (as of Oct. 7)                                                                           (396,681.56) Adj. Net Purchase Price                                                                                                     $33,601,814.50 Plus: Gross Cash Balance at Oct. 2                                                                                           14,213,435.78 Plus: Other Operating Cash Changes from Oct. 2 through Oct. 5                                                                  (195,484.82) Total Net Proceeds to Existing Shareholders                                                                                 $47,619,765.46





 






                                                              Exhibit  B                  Form of Purchase Price Certificate           [See Attached.]               





 






                                                           EXECUTION VERSION                                                      This  Purchase  Price  Certificate  is  made  and  delivered Pursuant  to that  certain  Membership  Interest  Purchase Agreement dated as of October 8, 2020 (the “Agreement”), by and among Medley  Capital Corporation, a Delaware corporation (“Medley”), Great American Life Insurance Company, an  Ohio  corporation (“GALIC”)  (Medley  and  GALIC,  each,  a “Seller” and  collectively, the  “Sellers”),  MCC  Senior  Loan  Strategy  JV  I  LLC,  a  Delaware  limited  liability  company  (the “Company”),  and  GEMS  Fund  5,  L.P.,  a  Delaware  limited  partnership  (“Buyer”). Capitalized  terms  used  but  not  otherwise  defined  in  this  Purchase  Price  Certificate  will  have  the  same  meanings  ascribed  to  such  terms in the Agreement.         The undersigned, Richard Allorto, does hereby certify to Buyer on behalf of Medley as follows:         1.    He is the duly elected, qualified and acting Chief Financial Officer of Medley.          2.    The calculation of the Purchase Price, attached to the Agreement as Exhibit A, is true  and correct as of the Closing Date, in accordance with the terms of the Agreement.                                      [SIGNATURE PAGE FO LLO WS]               9542/38263-022 CURRENT/119607163v3 





 






         IN  WITNESS  WHEREOF,  the  undersigned  has  executed  this  Purchase  Price  Certificate  effective as of the Closing.                                             MEDLEY CAPITAL CORPORATION                                              By:                                                                             Name: Richard Allorto                                             Title: Chief Financial Officer     





 






                                                                    Exhibit  C                     Form of Membership Interest Assignment              [See Attached.]               





 






                                                         EXECUTION VERSION                  MEMBERSHIP  INTEREST  ASSIGNMENT  AGREEMENT               THIS MEMBERSHIP  INTEREST ASSIGNMENT AGREEMENT  (this “Assignment”)  dated as of October 8, 2020, is entered into by and between [●], a Delaware corporation (“Assignor”) and  GEMS Fund 5, L.P., a Delaware limited partnership (“Assignee”).               WHEREAS, Assignor desires to transfer and assign, and Assignee desires to accept, [●]%  of the issued and outstanding limited liability  company membership interests in MCC Senior Loan Strategy  JV I LLC, a Delaware limited  liability  company (the “Company”), owned by Assignor (the “Membership  Interests”);               WHEREAS,  after giving effect to such assignment, Assignor will own zero percent (0%)  of the Membership Interests; and               NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of  which is hereby acknowledged, Assignor and Assignee hereby agree as follows:               Section 1.  Transfer and Assignment.  Assignor hereby sells, transfers, assigns and  conveys to Assignee, free and clear of all liens, claims, pledges and encumbrances of any nature whatsoever,  all  of Assignor’s right, title and interest in and to the Membership Interests, to have and to hold the same  unto Assignee (including Assignor’s obligations under that certain Limited Liability  Company Operating  Agreement of the Company, dated as of March 27, 2015 (as amended, supplemented or otherwise modified  from time to time, the “LLC Agreement”)).              Section 2.   Acceptance.   Assignee hereby accepts the foregoing assignment of the  Membership Interests from Assignor, agrees to be party to and bound by the terms and conditions of the  LLC  Agreement  and assumes all  of the  duties, responsibilities  and  rights, and  agrees to perform and  discharge all of the obligations of Assignor in Assignee’s capacity as a member of the Company in respect  of the Membership Interests conveyed.  Assignor and  Assignee agree that the Assignment will  satisfy  Section 3.1(b) of the LLC Agreement.                Section 3.   Substitution.  Assignee is hereby admitted to the Company as a member,  it being understood that Assignee is a substitute member of Assignor.               Section 4.  Further  Assurances.   Each  party  hereby  agrees  to  do,  execute,  acknowledge and deliver, or to cause to be done, executed, acknowledged and delivered, all  such further  acts, deeds, assignments, transfers, conveyances, powers of attorney and other documents or instruments  that may be reasonably requested by the other party or the Company in  order to effect or confirm the  assignment, acceptance and assumption provided for above.              Section 5.   Terms of the  Purchase Agreement.  Reference is  hereby made  to that  certain Membership Interest Purchase Agreement dated of even date herewith by and among the Assignee,  the Assignor and the other parties named therein (the “Purchase Agreement”).  The terms of the Purchase  Agreement, including, but not limited to, the representations, warranties, covenants and agreements relating  to the Membership Interests are incorporated herein by reference. The parties hereto acknowledge and agree  that the representations, warranties, covenants and agreements contained in the Purchase Agreement shall  not be superseded hereby but shall remain in full force and effect to the full extent provided therein. In the  event of any conflict or inconsistency between the terms of the Purchase Agreement and the terms hereof,  the terms of the Purchase Agreement shall govern.                 Section 6.  Miscellaneous.    9542/38263-022 CURRENT/119546483v3 





 






           (a)    Governing Law.  This Agreement shall be governed and construed in accordance  with the laws of the State of Delaware applicable to contracts made and to be performed within such State.              (b)    Headings.   Section  headings  used  in  this  Agreement  are  for  convenience  of  reference only and shall not be used in interpreting, construing or affecting the meaning or construction of  this Agreement.              (c)    Counterparts.  This  Agreement  may be  executed by the  parties hereto  in  any  number of counterparts, each of which shall  be deemed to be an original  but all  of which together shall  constitute but one and the same instrument. Any counterpart may be executed by facsimile signature and  such facsimile signature shall be deemed an original.              (d)    Third Party Beneficiaries.  The Company is an express third party beneficiary of  this Agreement.              (e)    Binding Effect.  The respective rights and obligations set forth in this Agreement  shall be binding on and inure to the benefit of the parties hereto and their respective successors and assigns.                         [Remainder of page intentionally  left blank]                   [Signature Page to Membership Interest Assignment Agreement] 





 






               IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the  day and year first written above.                                                                                              ASSIGNOR:                                       [●]                                                                                                                  By:                                                                          Name:                                                               Title:                                                                                                        ASSIGNEE:                                       GEMS FUND 5, L.P., a Delaware limited partnership                                                                                                                  By:                                                                          Name:                                                         Title:                                    [Signature Page to Membership Interest Assignment Agreement] 





 






Acknowledged and consented to:                  [●]    By:                                              Name:                     Title:                                                                                                                                                                                                          [Signature Page to Membership Interest Assignment Agreement] 





 






                                                        Exhibit  D               Form of Resignation Letter        [See Attached.]               





 






                                               EXECUTION VERSION                         LETTER OF RESIGNATION    Medley  Capital  Corporation  375 Park Avenue,  33rd Floor  New York, NY 10152                                                          October 8, 2020    To Whom  It May Concern:              Reference  is hereby made  to  that  certain Membership  Interest  Purchase  Agreement, dated  as  of October  8,  2020 (as  amended,  supplemented  and/or  otherwise  modified  from  time  to  time,  the  “Purchase  Agreement”),  by  and  among Medley  Capital  Corporation,  a  Delaware  corporation,  Great  American  Life  Insurance  Company,  an  Ohio  corporation, MCC  Senior  Loan  Strategy  JV  I  LLC,  a  Delaware  limited liability company,  and  GEMS  Fund  5,  L.P.,  a  Delaware limited partnership.  Capitalized terms used, but not  otherwise defined  herein,  shall  have the meanings  set forth in the Purchase Agreement.              Effective  as  of  the  Closing,  the  undersigned  hereby irrevocably resigns  from any  and all  director,  manager  and  officer  positions  that  the  undersigned  holds with  respect  to the Acquired  Companies, without need for acceptance or any further action by  any of the Acquired Companies.                                        [Signature Page Follows]                                                                          9542/38263-022 CURRENT/119544282v2 





 






                                         Sincerely,                                                                                  __________________________                                        Name:                                        Title:                                                                                    ACKNOWLEDGED:    MCC SENIOR LOAN STRATEGY  JV I LLC  BY:  MEDLEY           CAPITAL       CORPORATION,  in  its  capacity       as a Member of the Company      By:                                       Name:        Title:    BY:  GREAT    AMERICAN    LIFE       INSURANCE COMPANY, in its       capacity  as  a  Member  of  the       Company      By:                                       Name:        Title:                                                                  [Signature Page to Letter of Resignation] 





 






                                              Exhibit  E           Payoff  Letter   [See Attached.]                                                                                       





 






                                                        EXECUTION VERSION                               TERMINATION LETTER                                                                    October 8, 2020    MCC JV SPV Funding I LLC  c/o Medley Capital LLC  280 Park Avenue, 6th Floor  New York, NY 10017  Attention: The General Counsel      Re:  Loan and Servicing Agreement, dated as of August 4, 2015 (as amended, modified,  waived, supplemented or restated from time to time, the “Loan and Servicing Agreement”) by  and among MCC JV SPV Funding I LLC, as the borrower (the “Borrower”), MCC Senior Loan  Strategy JV I LLC, as the servicer (in such capacity, the “Servicer”), as the equityholder (in such  capacity, the “Equityholder”) and the originator (in such capacity, the “Originator”), Deutsche  Bank AG, New York Branch, as the facility agent (in such capacity, the “Facility Agent”), each  of the Lenders from time to time party thereto (the “Lenders”), each of the Lender Agents from  time to time party thereto (the “Lender Agents”) and U.S. Bank National Association, as the  collateral agent (in such capacity, the “Collateral Agent”), as the account bank (in such capacity,  the “Account Bank”) and as the collateral custodian (in such capacity, the “Collateral  Custodian”).    Ladies and Gentlemen:   Reference is made to the Loan and Servicing Agreement described above.  We have been  requested to provide this letter setting forth the amount necessary, as of October 8, 2020 (the  “Termination Date”), to pay all Obligations of the Borrower under the Loan and Servicing  Agreement.  Capitalized terms used but not otherwise defined herein shall have the respective  meanings provided therefor in the Loan and Servicing Agreement.                1.    In accordance with the foregoing, the parties hereto request that the Borrower  hereby pay to the Collateral Agent the amounts set forth on Schedule I to be paid for distribution  (a) to each Lender under the Loan and Servicing Agreement, an amount equal to the applicable  amount set forth on Schedule I hereto in repayment of all outstanding principal, accrued and  unpaid interest, fees and all other Obligations owed to the Lenders under the Loan and Servicing  Agreement as of the Termination Date; (b) to counsel for the Lenders and other Secured Parties,  an amount equal to the applicable amount set forth on Schedule I hereto in repayment of all  outstanding fees owed to such counsel as of the Termination Date; and (c) to the Secured Parties,  an amount equal to the applicable amount set forth on Schedule I hereto in repayment of all  accrued and unpaid interest and fees owed to the Secured Parties as of the Termination Date  (such amounts referenced in this Section 1 (and as more fully specified on Schedule I hereto) in  the aggregate, the “Termination Amount”). The Collateral Agent shall disburse any amounts that  are received pursuant to this Section 1 in accordance with the instructions set forth on Schedule  II immediately and, in any event, no later than (x) on the same Business Day that such amounts  are received if they are received at or prior to 11:00 a.m. (New York City time) on such Business    USActive 55333093.5 





 






     Day and (y) on the Business Day following receipt of such amounts if they are received after   11:00 a.m. (New York City time). The parties hereto agree that the payment of the Termination   Amount shall constitute payment in full of all Obligations, except for any Obligations of the   Borrower with respect to indemnification and other similar provisions in the Transaction   Documents which by their express terms survive the termination of such Transaction   Documents.                  2.    Each of the Borrower, the Originator, the Equityholder, the Servicer, the   Collateral Agent, the Account Bank, the Collateral Custodian and the Facility Agent for itself on   behalf of the Lenders hereby waives all conditions set forth in the Loan and Servicing   Agreement and the other Transaction Documents in connection with the voluntary prepayment   and permanent reduction of the Maximum Commitment in whole and the termination of the   Loan and Servicing Agreement.                  3.    Each Secured Party hereby acknowledges receipt of payment of all Obligations   owing to it under the Transaction Documents as of the Termination Date.  The parties hereto   agree and acknowledge that upon receipt by the Collateral Agent of the amounts set forth in   Section 1 above (and as more fully specified on Schedule I hereto), (i) all the security interests,   liens and pledges in favor of the Collateral Agent or any other Secured Party securing the above-  referenced Obligations and Collateral under the Transaction Documents are automatically   released with no further action on the part of any person, (ii) all obligations of the Borrower, the  Originator, the Equityholder and the Servicer in respect of the Transaction Documents are  deemed to be paid off, satisfied and discharged in full, (iii) the Commitments are terminated, (iv)   each Transaction Document is deemed terminated and of no further force and effect, except for   indemnification and other provisions thereof which by their express terms survive the   termination of such Transaction Document and (v) all obligations of the Borrower, the   Originator, the Equityholder and the Servicer to the Secured Parties under and/or arising in   connection with the Transaction Documents are deemed to be terminated, satisfied and   discharged in full and of no further force and effect, except for indemnification and other   provisions thereof, which by their express terms survive the termination of the Transaction   Documents.                   4.    Upon the termination of all Commitments and payment in full of the Obligations   (other than unmatured contingent indemnification obligations) as described herein, the Borrower   hereby requests the release of, and the Collateral Agent, the Account Bank and the Collateral  Custodian shall release, all Collateral (including any Required Loan Documents and Loan Files)  and other documents to the Borrower (and/or its designee).  The foregoing shall be at the sole  cost and expense of the Borrower with no liability to the Collateral Agent, the Account Bank or  the Collateral Custodian.                5.    The Facility Agent, the Lenders and the Secured Parties hereby acknowledge that  the recipient hereof will rely on this letter and the acknowledgments, certifications,   confirmations and agreements of the Secured Parties contained herein.  The Secured Parties   hereto authorize the filing of termination statements on form UCC-3 (including the UCC-3s   attached hereto as Exhibit III) or other security interest terminations with respect to the   Transaction Documents and shall procure, deliver or execute and deliver all further instruments     USActive 55333093.5                   2 





 






     and documents, and take any other actions, which are reasonably required to evidence the   consummation of the payoff contemplated hereby and the termination of all security interests,   liens and pledges arising under or relating to the Transaction Documents, and the prompt   delivery to the Borrower (or its designee) of all promissory notes, possessory collateral and other   instruments in the possession of the Administrative Agent, the Collateral Agent, any Lender or  any other Secured Party.                6.    This letter may be executed by the parties hereto individually or in any  combination, in one or more counterparts, each of which shall be an original and all of which   shall constitute one and the same letter.  Delivery of an executed counterpart of a signature page   to this letter by e-mail in portable document format (.pdf) or facsimile shall be effective as   delivery of a manually executed counterpart of this letter.                  7.    THE BORROWER AND EACH SECURED PARTY HEREBY   IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY   AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF   OR RELATING TO THIS LETTER OR THE TRANSACTIONS CONTEMPLATED   HEREBY.                  8.    This letter shall be governed by, and construed in accordance with, the laws of the   State of New York.                  9.    The Facility Agent hereby authorizes and directs U.S. Bank National Association,   in its capacity as Collateral Agent, Account Bank and as Collateral Custodian under the Loan   and Servicing Agreement, to execute, deliver and perform this letter.  Each of the other parties   agrees that the Collateral Agent, the Account Bank and the Collateral Custodian will have no  liability for entering into this letter or for any action or inaction of the Collateral Agent, the   Account Bank and the Collateral Custodian, as applicable, taken pursuant to this letter (including   any instruction given to the Collateral Agent, the Account Bank and the Collateral Custodian, as  applicable) in accordance herewith, except to the extent that such action or inaction arises from   the bad faith, gross negligence or willful misconduct of the Collateral Agent, the Account Bank   and the Collateral Custodian, as applicable. Each of the other parties hereby waives and releases,   to the fullest extent permitted by law, any liabilities, obligations, duties, promises or claims it   may have on or prior to the Termination Date under any Transaction Document or this letter, at   law or in equity, against the Collateral Agent, the Account Bank and the Collateral Custodian, as   applicable, except, with respect to this letter, any claim arising from the bad faith, gross   negligence or willful misconduct of the Collateral Agent, the Account Bank and the Collateral   Custodian, as applicable, as described in the preceding sentence. The Collateral Agent, the   Account Bank and the Collateral Custodian may conclusively rely on the directions and   certifications set forth in this letter and any Transaction Document without further investigation.            10.   The parties agree that this letter may be executed and delivered by electronic   signatures and that the signatures appearing on this letter are the same as handwritten signatures   for the purposes of validity, enforceability and admissibility.           USActive 55333093.5                   3 





 






                               [Signature pages to follow]    USActive 55333093.5                   4 





 






      The instructions set forth above are irrevocable instructions which can only be changed  by an instruction signed by the parties hereto.  Please sign below in the space provided to  confirm receipt and acknowledgement of foregoing.                                             Sincerely,                                           DEUTSCHE BANK AG, NEW YORK                                            BRANCH, as Facility Agent                                           DEUTSCHE BANK AG, NEW YORK                                            BRANCH, as Lender                              [Signature Page to Termination Letter] 





 






                                 U.S. BANK NATIONAL ASSOCIATION, as               Collateral Agent, Account Bank and as               Collateral Custodian                 By: ____________________________________                  Name:   Ralph J. Creasia, Jr.                 Title:  Senior Vice President                                                         [Signature Page to Termination Letter] 





 






             ACKNOWLEDGED  AND AGREED as  of the               date first set forth above:                MCC JV SPV FUNDING I LLC, as Borrower                By: ____________________________________                  Name: Richard T. Allorto, Jr.                  Title: Authorized Person                MCC SENIOR LOAN STRATEGY JV I                  LLC, as Equityholder                 By: ____________________________________                  Name: Richard T. Allorto, Jr.                  Title: Authorized Person                MCC SENIOR LOAN STRATEGY JV I                  LLC, as Servicer                 By: ____________________________________                  Name: Richard T. Allorto, Jr.                  Title: Authorized Person                MCC SENIOR LOAN STRATEGY JV I                  LLC, as Originator                By: ____________________________________                  Name: Richard T. Allorto, Jr.                  Title: Authorized Person    [Signature Page to Termination Letter] 





 






             MEDLEY CAPITAL CORPORATION, as                  Retention Holder                By: ____________________________________                  Name: Richard T. Allorto, Jr.                  Title: Chief Financial Officer    [Signature Page to Termination Letter] 





 






                                                                      SCHEDULE I                                                                                                    (Amounts Determined as of the Termination Date)                                             1.  Outstanding Principal:                             Recipient                              Amount                                                                     Deutsche Bank AG, New York Branch, as Lender                $111,319,482.48   Total                                                       $111,319,482.48            2.  Accrued and Unpaid Interest and Fees:                           Recipient                              Amount                                                                     Deutsche Bank AG, New York Branch                               $376,605.93    Cadwalader, Wickersham & Taft LLP                                $15,000.00    U.S. Bank National Association                                    $5,075.63      3.  Total Termination Amount:              Amount                         $111,716,164.04                                             [Schedule I] 





 






                                               SCHEDULE III          (See attached.)                                                  [Schedule III] 





 






UCC FINANCING STATEMENT AMENDMENT FOLLOW INSTRUCTIONS  A. NAME & PHONE OF CONTACT AT FILER (optional)   B. E-MAIL CONTACT AT FILER (optional)   C. SEND ACKNOWLEDGMENT TO:   (Name and Address)                                                                                                                                         THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY 1a. INITIAL FINANCING STATEMENT FILE NUMBER                                                                            1b.      This FINANCING STATEMENT AMENDMENT is to be filed [for record]                                                                                                                                 (or recorded) in the REAL ESTATE RECORDS  20153388054 filed on 08/05/2015                                                                                                Filer: attach Amendment Addendum (Form UCC3Ad) and provide Debtor’s name in item 13 2.  ✔    TERMINATION: Effectiveness of the Financing Statement identified above is terminated with respect to the security interest(s) of Secured Party authorizing this Termination          Statement  3.       ASSIGNMENT (full or partial):  Provide name of Assignee in item 7a or 7b, and address of Assignee in item 7c and name of Assignor in item 9          For partial assignment, complete items 7 and 9 and also indicate affected collateral in item 8  4.       CONTINUATION:  Effectiveness of the Financing Statement identified above with respect to the security interest(s) of Secured Party authorizing this Continuation Statement is          continued for the additional period provided by applicable law   5.      PARTY INFORMATION CHANGE:     Check   one of these two boxes:                                             AND    Check   one of these three boxes to:                                                                                             CHANGE name and/or address:  Complete                   ADD name:  Complete item             DELETE name:  Give record name     This Change affects          Debtor  or      Secured Party of record                    item 6a or 6b; and item 7a or 7b and item 7c            7a or 7b, and item 7c                to be deleted in item 6a or 6b 6. CURRENT RECORD INFORMATION:  Complete for Party Information Change - provide only one name (6a or 6b)       6a. ORGANIZATION'S NAME  OR       6b. INDIVIDUAL'S SURNAME                                                                       FIRST PERSONAL NAME                                        ADDITIONAL NAME(S)/INITIAL(S)                  SUFFIX   7. CHANGED OR ADDED INFORMATION:                            Complete for Assignment or Party Information Change - provide only one name (7a or 7b) (use exact, full name; do not omit, modify, or abbreviate any part of the Debtor’s name)       7a. ORGANIZATION'S NAME  OR       7b. INDIVIDUAL'S SURNAME              INDIVIDUAL'S FIRST PERSONAL NAME              INDIVIDUAL'S ADDITIONAL NAME(S)/INITIAL(S)                                                                                                                                                          SUFFIX   7c.  MAILING ADDRESS                                                                                 CITY                                                       STATE       POSTAL CODE                        COUNTRY   8.       COLLATERAL CHANGE:                  Also check one of these four boxes:              ADD collateral                DELETE collateral                RESTATE covered collateral                   ASSIGN collateral          Indicate collateral:   9. NAME OF SECURED PARTY OF RECORD AUTHORIZING THIS AMENDMENT:  Provide only one name (9a or 9b) (name of Assignor, if this is an Assignment)     If this is an Amendment authorized by a DEBTOR, check here                      and provide name of authorizing Debtor       9a. ORGANIZATION'S NAME        U.S. Bank National Association, as Collateral Agent OR       9b. INDIVIDUAL'S SURNAME                                                                       FIRST PERSONAL NAME                                        ADDITIONAL NAME(S)/INITIAL(S)                  SUFFIX  10. OPTIONAL FILER REFERENCE DATA:  Debtor: MCC JV SPV Funding I LLC (Filed with the Delaware Secretrary of State (79201.107))                                                                                                                                     International Association of Commercial Administrators                            (IACA) FILING OFFICE COPY — UCC FINANCING STATEMENT AMENDMENT (Form UCC3) (Rev. 04/20/11)





 






UCC FINANCING STATEMENT AMENDMENT FOLLOW INSTRUCTIONS  A. NAME & PHONE OF CONTACT AT FILER (optional)   B. E-MAIL CONTACT AT FILER (optional)   C. SEND ACKNOWLEDGMENT TO:   (Name and Address)                                                                                                                                         THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY 1a. INITIAL FINANCING STATEMENT FILE NUMBER                                                                            1b.      This FINANCING STATEMENT AMENDMENT is to be filed [for record]                                                                                                                                 (or recorded) in the REAL ESTATE RECORDS  20153388443 filed on 08/05/2015                                                                                                Filer: attach Amendment Addendum (Form UCC3Ad) and provide Debtor’s name in item 13 2.  ✔    TERMINATION: Effectiveness of the Financing Statement identified above is terminated with respect to the security interest(s) of Secured Party authorizing this Termination          Statement  3.       ASSIGNMENT (full or partial):  Provide name of Assignee in item 7a or 7b, and address of Assignee in item 7c and name of Assignor in item 9          For partial assignment, complete items 7 and 9 and also indicate affected collateral in item 8  4.       CONTINUATION:  Effectiveness of the Financing Statement identified above with respect to the security interest(s) of Secured Party authorizing this Continuation Statement is          continued for the additional period provided by applicable law   5.      PARTY INFORMATION CHANGE:     Check   one of these two boxes:                                             AND    Check   one of these three boxes to:                                                                                             CHANGE name and/or address:  Complete                   ADD name:  Complete item             DELETE name:  Give record name     This Change affects          Debtor  or      Secured Party of record                    item 6a or 6b; and item 7a or 7b and item 7c            7a or 7b, and item 7c                to be deleted in item 6a or 6b 6. CURRENT RECORD INFORMATION:  Complete for Party Information Change - provide only one name (6a or 6b)       6a. ORGANIZATION'S NAME  OR       6b. INDIVIDUAL'S SURNAME                                                                       FIRST PERSONAL NAME                                        ADDITIONAL NAME(S)/INITIAL(S)                  SUFFIX   7. CHANGED OR ADDED INFORMATION:                            Complete for Assignment or Party Information Change - provide only one name (7a or 7b) (use exact, full name; do not omit, modify, or abbreviate any part of the Debtor’s name)       7a. ORGANIZATION'S NAME  OR       7b. INDIVIDUAL'S SURNAME              INDIVIDUAL'S FIRST PERSONAL NAME              INDIVIDUAL'S ADDITIONAL NAME(S)/INITIAL(S)                                                                                                                                                          SUFFIX   7c.  MAILING ADDRESS                                                                                 CITY                                                       STATE       POSTAL CODE                        COUNTRY   8.       COLLATERAL CHANGE:                  Also check one of these four boxes:              ADD collateral                DELETE collateral                RESTATE covered collateral                   ASSIGN collateral          Indicate collateral:   9. NAME OF SECURED PARTY OF RECORD AUTHORIZING THIS AMENDMENT:  Provide only one name (9a or 9b) (name of Assignor, if this is an Assignment)     If this is an Amendment authorized by a DEBTOR, check here                      and provide name of authorizing Debtor       9a. ORGANIZATION'S NAME        U.S. Bank National Association, as Collateral Agent OR       9b. INDIVIDUAL'S SURNAME                                                                       FIRST PERSONAL NAME                                        ADDITIONAL NAME(S)/INITIAL(S)                  SUFFIX  10. OPTIONAL FILER REFERENCE DATA:  Debtor: MCC Senior Loan Strategy JV I LLC (Filed with the Delaware Secretary of State (79201.107))                                                                                                                                     International Association of Commercial Administrators                            (IACA) FILING OFFICE COPY — UCC FINANCING STATEMENT AMENDMENT (Form UCC3) (Rev. 04/20/11)





 






UCC FINANCING STATEMENT AMENDMENT FOLLOW INSTRUCTIONS  A. NAME & PHONE OF CONTACT AT FILER (optional)   B. E-MAIL CONTACT AT FILER (optional)   C. SEND ACKNOWLEDGMENT TO:   (Name and Address)                                                                                                                                         THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY 1a. INITIAL FINANCING STATEMENT FILE NUMBER                                                                            1b.      This FINANCING STATEMENT AMENDMENT is to be filed [for record]                                                                                                                                 (or recorded) in the REAL ESTATE RECORDS  20153388518 filed on 08/05/2015                                                                                                Filer: attach Amendment Addendum (Form UCC3Ad) and provide Debtor’s name in item 13 2.  ✔    TERMINATION: Effectiveness of the Financing Statement identified above is terminated with respect to the security interest(s) of Secured Party authorizing this Termination          Statement  3.       ASSIGNMENT (full or partial):  Provide name of Assignee in item 7a or 7b, and address of Assignee in item 7c and name of Assignor in item 9          For partial assignment, complete items 7 and 9 and also indicate affected collateral in item 8  4.       CONTINUATION:  Effectiveness of the Financing Statement identified above with respect to the security interest(s) of Secured Party authorizing this Continuation Statement is          continued for the additional period provided by applicable law   5.      PARTY INFORMATION CHANGE:     Check   one of these two boxes:                                             AND    Check   one of these three boxes to:                                                                                             CHANGE name and/or address:  Complete                   ADD name:  Complete item             DELETE name:  Give record name     This Change affects          Debtor  or      Secured Party of record                    item 6a or 6b; and item 7a or 7b and item 7c            7a or 7b, and item 7c                to be deleted in item 6a or 6b 6. CURRENT RECORD INFORMATION:  Complete for Party Information Change - provide only one name (6a or 6b)       6a. ORGANIZATION'S NAME  OR       6b. INDIVIDUAL'S SURNAME                                                                       FIRST PERSONAL NAME                                        ADDITIONAL NAME(S)/INITIAL(S)                  SUFFIX   7. CHANGED OR ADDED INFORMATION:                            Complete for Assignment or Party Information Change - provide only one name (7a or 7b) (use exact, full name; do not omit, modify, or abbreviate any part of the Debtor’s name)       7a. ORGANIZATION'S NAME  OR       7b. INDIVIDUAL'S SURNAME              INDIVIDUAL'S FIRST PERSONAL NAME              INDIVIDUAL'S ADDITIONAL NAME(S)/INITIAL(S)                                                                                                                                                          SUFFIX   7c.  MAILING ADDRESS                                                                                 CITY                                                       STATE       POSTAL CODE                        COUNTRY   8.       COLLATERAL CHANGE:                  Also check one of these four boxes:              ADD collateral                DELETE collateral                RESTATE covered collateral                   ASSIGN collateral          Indicate collateral:   9. NAME OF SECURED PARTY OF RECORD AUTHORIZING THIS AMENDMENT:  Provide only one name (9a or 9b) (name of Assignor, if this is an Assignment)     If this is an Amendment authorized by a DEBTOR, check here                      and provide name of authorizing Debtor       9a. ORGANIZATION'S NAME        U.S. Bank National Association, as Collateral Agent OR       9b. INDIVIDUAL'S SURNAME                                                                       FIRST PERSONAL NAME                                        ADDITIONAL NAME(S)/INITIAL(S)                  SUFFIX  10. OPTIONAL FILER REFERENCE DATA:  Debtor: MCC Senior Loan Strategy JV I LLC (Filed with the Delaware Secretary of State (79201.107))                                                                                                                                     International Association of Commercial Administrators                            (IACA) FILING OFFICE COPY — UCC FINANCING STATEMENT AMENDMENT (Form UCC3) (Rev. 04/20/11)