Contract
EX 10.11
EXECUTION VERSION
AMENDMENT NO. 2 TO LOAN FINANCING AND SERVICING AGREEMENT, dated as of December 16, 2022 (this “Amendment”), among MSD BDC SPV I, LLC, a Delaware limited liability company, as borrower (the “Borrower”), MSD Investment Corp., a Maryland corporation, as equityholder (the “Equityholder”) and as servicer (the “Servicer”), Deutsche Bank AG, New York Branch (“DBNY”), as facility agent (in such capacity, the “Facility Agent”) and as a lender (“ Lender”) and Mitsubishi HC Capital America, Inc., as a joining lender (as the “Joining Lender”).
WHEREAS, the Borrower, the Equityholder, the Servicer, U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank National Association), as the collateral agent and U.S. Bank National Association, as the collateral custodian, the Facility Agent and each Agent and Lender party thereto are party to the Loan Financing and Servicing Agreement, dated as of December 21, 2021 (as amended, supplemented, amended and restated and otherwise modified from time to time, the “Loan Agreement”);
WHEREAS, the Joining Lender desires to become a “Lender” under the Loan Agreement and related Transaction Documents;
WHEREAS, the Borrower, the Servicer, the Facility Agent and the Lenders have agreed to amend the Loan Agreement in accordance with Section 17.2 of the Loan Agreement and subject to the terms and conditions set forth herein; and
NOW THEREFORE, in consideration of the foregoing premises and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.1. Defined Terms. Terms used but not defined herein have the respective meanings given to such terms in the Loan Agreement.
ARTICLE II
Amendments
SECTION 2.1. Amendments to the Loan Agreement. The Loan Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold and double-underlined text (indicated textually in the same manner as the following example: bold and double underlined text) as set forth on the pages of the Loan Agreement attached as Exhibit A hereto.
SECTION 2.2. Amendments to the Exhibits and Schedules to the Loan Agreement. The Exhibits and Schedules to the Loan Agreement are hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold and double-underlined text (indicated textually in the same manner as the following example: bold and double underlined text) as set forth on the pages of the Exhibits and Schedules to the Loan Agreement attached as Exhibit B hereto.
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ARTICLE III
Joining Lenders
SECTION 3.1. The Joining Lender is hereby joined to the Loan Agreement and all related Transaction Documents, in each case, as a “Lender”.
ARTICLE IV
Conditions to Effectiveness
SECTION 4.1. This Amendment shall become effective as of the date first written above upon the satisfaction of the following conditions:
other charges of external counsel to the extent invoiced one Business Day prior to the date hereof) due to the Lenders on or prior to the effective date of this Amendment have been paid in full.
ARTICLE V
Representations and Warranties
SECTION 5.1. The Borrower hereby represents and warrants to the Facility Agent and the Lenders that, as of the date first written above, (i) no Event of Default, Unmatured Event of Default, Servicer Default or Unmatured Servicer Default has occurred and is continuing and (ii) the representations and warranties of the Borrower contained in the Loan Agreement are true and correct in all material respects on and as of such day (other than any representation and warranty that is made as of a specific date).
ARTICLE VI
Miscellaneous
SECTION 6.1. Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 6.2. Severability Clause. In case any provision in this Amendment shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 6.3. Ratification. Except as expressly amended and waived hereby, the Loan Agreement is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.
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SECTION 6.4. Counterparts; Electronic Execution. The parties hereto may sign one or more copies of this Amendment in counterparts, all of which together shall constitute one and the same agreement. Delivery of an executed signature page of this Amendment by email transmission shall be effective as delivery of a manually executed counterpart hereof. The parties agree that this Amendment may be executed and delivered by electronic signatures and that the electronic signatures appearing on this Amendment are the same as handwritten signatures for the purposes of validity, enforceability and admissibility.
SECTION 6.5. Headings. The headings of the Articles and Sections in this Amendment are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the day and year first above written.
MSD BDC SPV I, LLC, as Borrower |
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By: |
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/s/ Xxxxx X. Xxxxxxxx |
Name: |
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Xxxxx X. Xxxxxxxx |
Title: |
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CFO & Treasurer |
[Signature Page to Amendment to LFSA]
MSD INVESTMENT CORP., as Equityholder and as Servicer |
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By: |
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/s/ Xxxxx X. Xxxxxxxx |
Name: |
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Xxxxx X. Xxxxxxxx |
Title: |
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CFO & Treasurer |
[Signature Page to Amendment to LFSA]
DEUTSCHE BANK AG, NEW YORK BRANCH, as Facility Agent |
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By: |
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/s/ Xxxx Xxxxx |
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Name: Xxxx Xxxxx |
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Title: Managing Director |
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By: |
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/s/ Xxxxx Xxxx |
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Name: Xxxxx Xxxx |
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Title: VP |
[Signature Page to Amendment to LFSA]
DEUTSCHE BANK AG, NEW YORK BRANCH, as an Agent and as a Committed Lender |
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By: |
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/s/ Xxxx Xxxxx |
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Name: Xxxx Xxxxx |
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Title: Managing Director |
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By: |
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/s/ Xxxxx Xxxx |
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Name: Xxxxx Xxxx |
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Title: VP |
[Signature Page to Amendment to LFSA]
MITSUBISHI HC CAPITAL AMERICA INC., as a Lender |
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By: |
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/s/ Xxxxx X. Xxxxxx |
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Name: Xxxxx X. Xxxxxx |
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Title: Chief Credit Officer Commercial Finance |
[Signature Page to Amendment to LFSA]
Exhibit A
CONFORMED LOAN FINANCING AND SERVICING AGREEMENT
EXECUTION VERSION
Conformed through Amendment No. 12 to the LFSA dated as of November 21December 16, 2022
LOAN FINANCING AND SERVICING AGREEMENT
dated as of December 21, 2021
MSD BDC SPV I, LLC
as Borrower,
as Equityholder and as Servicer,
THE LENDERS FROM TIME TO TIME PARTIES HERETO,
DEUTSCHE BANK AG, NEW YORK BRANCH
as Facility Agent,
THE OTHER AGENTS PARTIES HERETO,
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Collateral Agent
U.S. BANK NATIONAL ASSOCIATION,
as Collateral Custodian
“Excess Concentration Measure” means, (i) during the Ramp-Up Period, the Target Portfolio Amount and (ii) thereafter, the sum of (x) the Principal Balances for all Eligible Collateral Obligations plus (y) all amounts on deposit in the Principal Collection Account.
“Excluded Amounts” means, as of any date of determination, (i) any amount deposited into the Collection Account with respect to any Collateral Obligation, which amount is attributable to the reimbursement of payment by the Borrower of any Tax, fee or other charge imposed by any Official Body on such Collateral Obligation or on any Related Security, (ii) any interest or fees (including origination, agency, structuring, management or other up-front fees) that are for the account of the applicable Person from whom the Borrower purchased such Collateral Obligation, (iii) any reimbursement of insurance premiums, (iv) any escrows relating to Taxes, insurance and other amounts in connection with Collateral Obligations which are held in an escrow account for the benefit of the Obligor and the secured party pursuant to escrow arrangements under Underlying Instruments, and (v) any amount deposited into the Collection Account in error (including any amounts relating to any portion of an asset sold by the Borrower and occurring after the date of such sale).
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in the Obligations pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Obligations (other than pursuant to Section 17.16) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 4.3, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 4.3(f) and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Executive Officer” means, with respect to the Borrower, the Servicer or the Equityholder, the Chief Executive Officer, the Chief Operating Officer of such Person, the Investment Manager or any other Person included on the incumbency certificate of the Borrower, Servicer or Equityholder, as applicable, delivered pursuant to Section 6.1(g) and, with respect to any other Person, the President, Chief Financial Officer or any Vice President.
“Facility Agent” has the meaning set forth in the Preamble.
“Facility Amount” means (a) prior to the end of the Revolving Period, $465,000,000485,000,000, unless this amount is permanently reduced pursuant to Section 2.5 or increased pursuant to Section 2.8, in which event it means such lower or higher amount and (b) from and after the end of the Revolving Period, the aggregate principal amount of all the Advances outstanding. necessary or desirable to perfect and protect the assignments and security interests granted or purported to be granted by this Agreement or to enable the Collateral Agent or any of the Secured Parties to exercise and enforce its rights and remedies under this Agreement with respect to any Collateral. Without limiting the generality of the foregoing, the Borrower authorizes the filing of such financing or continuation statements, or amendments thereto, and such other instruments or notices as may be necessary or desirable or that the Collateral Agent (acting solely at the Facility Agent’s request) may reasonably request to protect and preserve the assignments and security interests granted by this Agreement. Such financing statements filed against the Borrower may describe the Collateral in the same manner specified in Section 12.1 or in any other manner as the Facility Agent may reasonably determine is necessary to ensure the perfection of such security interest (without disclosing the names of, or any information relating to, the Obligors thereunder),
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including describing such property as all assets or all personal property of the Borrower whether now owned or hereafter acquired.
Section 10.19 Obligor Payment Instructions.
The Borrower acknowledges that the power of attorney granted in Section 13.10 to the Collateral Agent permits the Collateral Agent to send (at the Facility Agent’s written direction after the occurrence of an Event of Default) Obligor notification forms to give notice to the Obligors of the Collateral Agent’s interest in the Collateral and the obligation to make payments as directed by the Collateral Agent (at the written direction of the Facility Agent). The Borrower further agrees that it shall (or it shall cause the Servicer to) provide prompt notice to the Facility Agent of any misdirected or errant payments made by any Obligor with respect to any Collateral Obligation and direct such Obligor to make payments as required hereunder.
Section 10.20 Delivery of Collateral Obligation Files.
Section 10.21 ERISA.
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Section 10.22 Risk Retention.
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APPLE BANK FOR SAVINGS, as an Agent |
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and as a Lender |
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By: |
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Name: |
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Title: |
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FIRST FOUNDATION BANK, as an Agent |
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and as a Lender |
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By: |
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Name: |
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Title: |
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TEXAS CAPITAL BANK, as an Agent and as |
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a Lender |
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By: |
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Name: |
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Title: |
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MITSUBISHI HC CAPITAL AMERICA, |
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INC., as an Agent and as a Lender |
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By: |
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Name: |
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Title: |
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U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Collateral Agent and U.S. BANK NATIONAL ASSOCIATION, as Collateral Custodian
For delivery of
Collateral Obligation files only:
U.S. Bank National Association
0000 Xxxx Xxx
Florence, South Carolina 29501
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxxx.xxxxxxx@xxxxxx.xxx
For all other notices and communications:
U.S. Bank Trust Company, National Association
000 Xxxxx XxXxxxx Xxxxxx
Chicago, IL 60603
Attention: Global Corporate Trust – MSD BDC SPV I, LLC
Email: xxxxx.xxxxxxxxx@xxxxxx.xxx
Telephone: (000) 000-0000
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Facility Agent
One Columbus Circle
Attention: Asset Finance Department
Email: xxx.xxxxxxxx@xx.xxx, xxxxxxxxxxxxx_xxxxxxxxxxxx@xxxx.xx.xxx, xxxx.xxxxx@xx.xxx,
xxxxx.xxxx@xx.xxx and xxxxx.xxxxxxxxxxxxxxx.xxxxxxx@xx.xxx
DEUTSCHE BANK AG, NEW YORK BRANCH,
as an Agent and as a Lender
One Columbus Circle
New York, New York 10019
Attention: Asset Finance Department
Email: xxx.xxxxxxxx@xx.xxx, xxxxxxxxxxxxx_xxxxxxxxxxxx@xxxx.xx.xxx, xxxx.xxxxx@xx.xxx,
xxxxx.xxxx@xx.xxx and xxxxx.xxxxxxxxxxxxxxx.xxxxxxx@xx.xxx
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APPLE BANK FOR SAVING,
as a Lender
000 X. 00xx Xxxxxx, 9th Floor
New York, NY 10168
Attention: Xxxx Xxxxxxxx
email: Xxxxxxxxx@xxxxxxxxx.xxx
FIRST FOUNDATION BANK,
as a Lender
00000 Xxx Xxxxxx Xxxxxx Xxxxx 000
Irvine, CA 92612
Attention: Loan Servicing
Telephone: 000-000-0000
Facsimile: 000-000-0000
email: xxxxxxxx@xx-xxx.xxx
TEXAS CAPITAL BANK,
as a Lender
0000 Xxxxxxxx Xxxx., Xxxxx 000
Richardson, TX 75082
Attention: Participation/Syndication Servicing
Email: XxxxxxXxxxxxxx-XxxxxXxxxxXxxxxxxxx@xxxxxxxxxxxxxxxx.xxx
MITSUBISHI HC CAPITAL AMERICA, INC.
as a Lender
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx; Xxxxxxx XxXxxxxx; Xxxx Xxxxx
Telephone: 000-000-0000; 000-000-0000; 000-000-0000
Email: Xxxxxxx@xxxxxx.xxx; xxxx@xxxxxx.xxx; xxxxxx@xxxxxx.xxx
Annex B
Lender |
Commitment |
Deutsche Bank AG, New York Branch |
$400,000,000 |
First Foundation Bank |
$30,000,000 |
Apple Bank for Savings |
$20,000,000 |
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Texas Capital Bank |
$15,000,000 |
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$15,000,000 |
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$20,000,000 |
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Mitsubishi HC Capital America, Inc. |
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Exhibit B
CONFORMED EXHIBITS AND SCHEDULES TO LOAN FINANCING AND SERVICING
AGREEMENT
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Conformed through Amendment No. 12 dated November 21December 16, 2022
SCHEDULES AND EXHIBITS
TO
LOAN FINANCING AND SERVICING AGREEMENT
Dated as of December 21, 2021
(MSD BDC SPV I, LLC)
EXHIBITS
EXHIBIT A |
Form of Note |
EXHIBIT B |
Audit Standards |
EXHIBIT C-1 |
Form of Advance Request |
EXHIBIT C-2 |
Form of Reinvestment Request |
EXHIBIT C-3 |
Form of Electronic Asset Approval Request |
EXHIBIT C-4 |
Form of Prepayment Notice |
EXHIBIT C-5 |
Form of Electronic Asset Approval Notice |
EXHIBIT D |
Form of Monthly Report |
EXHIBIT E |
Form of Joinder Agreement |
EXHIBIT F-1 |
Authorized Representatives of Servicer |
EXHIBIT F-2 |
Request for Release and Receipt |
EXHIBIT F-3 |
Request for Release of Request for Release and Receipt |
EXHIBIT G-1 |
U.S. Tax Compliance Certificate (Foreign Lender - non-Partnerships) |
EXHIBIT G-2 |
U.S. Tax Compliance Certificate (Foreign Participant - non-Partnerships) |
EXHIBIT G-3 |
U.S. Tax Compliance Certificate (Foreign Participants - Partnerships) |
EXHIBIT G-4 |
U.S. Tax Compliance Certificate (Foreign Lenders - Partnerships) |
EXHIBIT H |
Schedule of Collateral Obligations Certification |
SCHEDULES |
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SCHEDULE 1 |
Diversity Score Calculation |
SCHEDULE 2 |
Moody’s Industry Classification Group List |
SCHEDULE 3 |
Collateral Obligations |
SCHEDULE 4 |
Credit and Collection Policy |
SCHEDULE 5 |
Account Numbers |
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Deutsche Bank AG, New |
$_______ |
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York Branch |
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First Foundation Bank |
$_______ |
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Apple Bank for Savings |
$_______ |
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Texas Capital Bank |
$_______ |
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Mitsubishi HC Capital |
$_______ |
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America, Inc. |
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Total |
$_______ |
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Bank: [_________]
ABA #: [_________]
Account Name: [_________]
Account Number: [_________]
Reference: [_________]
After giving effect to the Advance and the Collateral Obligation(s) to be purchased by the Borrower with the proceeds of the Advance, as calculated as of the Advance Date, the aggregate principal amount of all Advances outstanding shall not exceed the lowest of (a) the Facility Amount, (b) the Borrowing Base and (c) the Maximum Availability.
By its acceptance of the Advance, the Borrower represents that the conditions described in Section 6.2 of the Loan Financing Agreement have been satisfied with respect to such Advance.
The Borrower agrees that (x) this Advance Request is irrevocable; provided, that if this Advance Request is conditioned upon the effectiveness of other transactions, it may be revoked or delayed by the Borrower (by notice to the Facility Agent on or prior to the proposed Advance Date) if such other transactions fail to become effective, and (y) if prior to the Advance Date any matter certified to herein by it will not be true and correct in all material respects (or if such representation and warranty is already qualified by the words “material”, “materially” or “Material Adverse Effect”, then such representation and warranty shall be true and correct in all
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Lender |
Current |
Current |
Advances to be |
Advances After |
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Commitment |
Advances |
Prepaid |
Prepayment |
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Outstanding |
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Deutsche Bank |
$_______ |
$_______ |
$_______ |
$_______ |
AG New York |
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Branch |
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First Foundation |
$_______ |
$_______ |
$_______ |
$_______ |
Bank |
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Apple Bank for |
$_______ |
$_______ |
$_______ |
$_______ |
Savings |
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Texas Capital |
$_______ |
$_______ |
$_______ |
$_______ |
Bank |
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Mitsubishi HC |
$_______ |
$_______ |
$_______ |
$_______ |
Capital America, |
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Inc. |
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Total |
$_______ |
$_______ |
$_______ |
$_______ |
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The Borrower represents that the conditions described in Section 2.4 of the Loan Financing Agreement have been satisfied with respect to such prepayment.
The Borrower has caused this Prepayment Notice to be executed and delivered, and the certification and warranties contained herein to be made, by its duly authorized officer on the date first set forth above.
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