Exhibit 10.1
FIRST AMENDED AND RESTATED
ADMINISTRATION AGREEMENT
THIS FIRST AMENDED AND RESTATED AGREEMENT
(this “Agreement”) is made as of June 17, 2019 by and between TP Flexible Income Fund, Inc., a Maryland corporation
(hereinafter referred to as the “Corporation”), and Prospect Administration LLC, a Delaware limited liability company
(hereinafter referred to as the “Administrator”).
W I T N E S S E T H:
WHEREAS, the Corporation is an externally
managed, non-diversified, closed-end management investment company that has elected to be treated as a business development company
under the Investment Company Act of 1940, as amended (the “Investment Company Act”);
WHEREAS, the Corporation desires to retain
the Administrator to provide administrative services to the Corporation in the manner and on the terms hereinafter set forth; and
WHEREAS, the Administrator is willing to
provide administrative services to the Corporation on the terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of the
premises and the covenants hereinafter contained and for other good and valuable consideration, the receipt and adequacy of which
is hereby acknowledged, the Corporation and the Administrator hereby agree as follows:
(a) Employment
of Administrator. The Corporation hereby employs the Administrator to act as administrator of the Corporation, and to
furnish, or arrange for others to furnish, the administrative services, personnel and facilities described below, subject to review
by and the overall control of the Board of Directors of the Corporation, for the period and on the terms and conditions set forth
in this Agreement. The Administrator hereby accepts such employment and agrees during such period to render, or arrange for
the rendering of, such services and to assume the obligations herein set forth subject to the reimbursement of costs and expenses
provided for below. The Administrator and such others shall for all purposes herein be deemed to be independent contractors
and shall, unless otherwise expressly provided or authorized herein, have no authority to act for or represent the Corporation
in any way or otherwise be deemed agents of the Corporation.
(b) Services.
The Administrator shall perform (or oversee, or arrange for, the performance of) the administrative services necessary for the
operation of the Corporation. Without limiting the generality of the foregoing, the Administrator shall provide the Corporation
with office facilities, equipment and clerical, accounting, finance, legal, bookkeeping and record keeping services at such facilities
and such other services as the Administrator, subject to review by the Board of Directors of the Corporation, shall from time to
time determine to be necessary or useful to perform its obligations under this Agreement. The Administrator shall also, on
behalf of the Corporation, conduct relations with custodians, depositories, transfer agents, dividend disbursing agents, other
stockholder servicing agents, accountants, attorneys, underwriters, brokers and dealers, corporate fiduciaries, regulatory authorities,
insurers, banks and such other persons in any such other capacity deemed to be necessary or desirable. The Administrator
shall make reports to the Board of Directors of the Corporation of its performance of obligations hereunder and furnish advice
and recommendations with respect to such other aspects of the business and affairs of the Corporation as the Administrator shall
determine to be desirable; provided that nothing herein shall be construed to require the Administrator to, and the Administrator
shall not, provide any advice or recommendation relating to the securities and other assets that the Corporation should purchase,
retain or sell or any other investment advisory services to the Corporation. The Administrator shall be responsible for the
financial and other records that the Corporation is required to maintain and shall prepare reports to stockholders, and reports
and other materials filed with the Securities and Exchange Commission (the “SEC”). The Administrator will provide
on the Corporation’s behalf significant managerial assistance to those portfolio companies to which the Corporation is required
to provide such assistance under the Investment Company Act or other applicable law. In addition, the Administrator will assist
the Corporation in determining and publishing the Corporation’s net asset value, overseeing the preparation and filing of
the Corporation’s tax returns, and the printing and dissemination of reports to stockholders of the Corporation, and generally
overseeing the payment of the Corporation’s expenses and the performance of administrative and professional services rendered
to the Corporation by others.
(c) Sub-Administrators.
The Administrator is hereby authorized to enter into one or more sub-administration agreements with other service providers (each
a “Sub-Administrator”) pursuant to which the Administrator may obtain the services of the service providers in fulfilling
its responsibilities hereunder. Any such sub-administration agreements shall be in accordance with the requirements of the
Investment Company Act and other applicable federal and state law and shall contain a provision requiring the Sub-Administrator
to comply with Sections 2 and 3 below as if it were the Administrator.
2. Records.
The Administrator agrees to maintain and keep all books, accounts and other records of the Corporation that relate to activities
performed by the Administrator hereunder and, if required by the Investment Company Act, will maintain and keep such books, accounts
and records in accordance with that Act. In compliance with the requirements of Rule 31a-3 under the Investment Company Act,
the Administrator agrees that all records which it maintains for the Corporation shall at all times remain the property of the
Corporation, shall be readily accessible during normal business hours, and shall be promptly surrendered upon the termination of
this Agreement or otherwise on written request. The Administrator further agrees that all records which it maintains for
the Corporation pursuant to Rule 31a-1 under the Investment Company Act will be preserved for the periods prescribed by Rule 31a-2
under the Investment Company Act unless any such records are earlier surrendered as provided above. Records shall be surrendered
in usable machine-readable form. The Administrator shall have the right to retain copies of such records subject to observance
of its confidentiality obligations under this Agreement.
3. Compliance.
The Administrator has adopted and implemented written policies and procedures reasonably designed to prevent violation of Federal
securities laws by the Administrator. The Administrator shall provide the Corporation, at such times as the Corporation shall
reasonably request, with a copy of such policies and procedures and a report of such policies and procedures; such report shall
be of sufficient scope and in sufficient detail, as may reasonably be required to comply with Rule 38a-1 under the Investment Company
Act and to provide reasonable assurance that any material inadequacies would be disclosed by such examination, and, if there are
no such inadequacies, the report shall so state.
4. Confidentiality.
The parties hereto agree that each shall treat confidentially the terms and conditions of this Agreement and all information provided
by each party to the other regarding its business and operations. All confidential information provided by a party hereto,
including nonpublic personal information pursuant to Regulation S-P of the SEC, shall be used by any other party hereto solely
for the purpose of rendering services pursuant to this Agreement and, except as may be required in carrying out this Agreement,
shall not be disclosed to any third party, without the prior consent of such providing party. The foregoing shall not be
applicable to any information that is publicly available when provided or thereafter becomes publicly available other than through
a breach of this Agreement, or that is required to be disclosed by any regulatory authority, any authority or legal counsel of
the parties hereto, by judicial or administrative process or otherwise by applicable law or regulation.
(a) In
full consideration of the provision of the services of the Administrator, the Corporation shall reimburse the Administrator for
the costs and expenses incurred by the Administrator in performing its obligations and providing personnel and facilities hereunder.
(b) The
Corporation will bear all costs and expenses that are incurred in its operation and transactions and not specifically assumed by
the Corporation’s investment adviser (the “Adviser”), pursuant to that certain Investment Advisory Agreement,
dated as of March 31, 2019, by and between the Corporation and the Adviser (the “Advisory Agreement”). Costs
and expenses to be borne by the Corporation include, but are not limited to, those relating to: organization and offering; calculating
the Corporation’s net asset value (including the cost and expenses of any independent valuation firms); expenses incurred
by the Adviser, Administrator or affiliates thereof payable to third parties, including agents, consultants or other advisors (such
as independent valuation firms, accountants and legal counsel), in monitoring financial and legal affairs for the Corporation and
in monitoring the Corporation’s investments and performing due diligence on its prospective investments; interest payable
on debt, if any, incurred to finance the Corporation’s investments; offerings of the Corporation’s debt, common stock
and other securities; investment advisory and management fees; administration fees, if any, payable under this Agreement; fees
payable to third parties, including agents, consultants or other advisors, relating to, or associated with, evaluating and making
investments; transfer agent and custodial fees; fees and expenses associated with marketing efforts (including attendance at investment
conferences and similar events); federal and state registration fees; all costs of registration and listing the Corporation’s
securities on any securities exchange; federal, state and local taxes; Directors’ fees and expenses; costs of preparing and
filing reports or other documents required by the SEC or any other governmental agency; costs of any reports, proxy statements
or other notices to stockholders, including printing costs; the Corporation’s allocable portion of any fidelity
bond, directors and officers/errors and omissions liability insurance, and any other insurance premiums; direct costs and
expenses of administration, including printing, mailing, long distance telephone, copying, secretarial and other staff,
independent auditors and outside legal costs; research and market data expenses including, without limitation, news and
quotation equipment and services; computer software specific to the business of the Corporation; any unreimbursed expenses
incurred in connection with transactions not consummated; and all other expenses incurred by the Corporation or the
Administrator in connection with administering the Corporation’s business, including payments under this Agreement
based upon the Corporation’s allocable portion of the Administrator’s and the Adviser’s overhead
in performing their obligations under this Agreement and the Advisory Agreement, including rent, and the allocable portion of
the cost of the Corporation’s chief compliance officer and chief financial officer and their respective staffs.
6. Limitation of
Liability of the Administrator; Indemnification. The Administrator and its affiliates (and their respective officers, managers,
partners, agents, employees, controlling persons, members, and any other person or entity affiliated with them) shall not be liable
to the Corporation for any action taken or omitted to be taken by the Administrator in connection with the performance of any of
its duties or obligations under this Agreement or otherwise as administrator for the Corporation, and the Corporation shall indemnify,
defend and protect the Administrator and its affiliates (and their respective officers, managers, partners, agents, employees,
controlling persons, members, and any other person or entity affiliated with the Administrator, each of whom shall be deemed a
third party beneficiary hereof) (collectively, the “Indemnified Parties”) and hold them harmless from and against all
damages, liabilities, costs and expenses (including reasonable attorneys’ fees and amounts reasonably paid in settlement)
incurred by the Indemnified Parties in or by reason of any pending, threatened or completed action, suit, investigation or other
proceeding (including an action or suit by or in the right of the Corporation or its security holders) arising out of or otherwise
based upon the performance of any of the Administrator’s duties or obligations under this Agreement or otherwise as administrator
for the Corporation. Notwithstanding the preceding sentence of this Paragraph 6 to the contrary, nothing contained herein
shall protect or be deemed to protect the Indemnified Parties against or entitle or be deemed to entitle the Indemnified Parties
to indemnification in respect of, any liability to the Corporation or its security holders to which the Indemnified Parties would
otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of the Administrator’s
duties or by reason of the reckless disregard of the Administrator’s duties and obligations under this Agreement (to the
extent applicable, as the same shall be determined in accordance with the Investment Company Act and any interpretations or guidance
by the SEC or its staff thereunder).
7. Activities of
the Administrator. The services of the Administrator to the Corporation are not to be deemed to be exclusive, and the Administrator
and each affiliate is free to render services to others. It is understood that directors, officers, employees and stockholders
of the Corporation are or may become interested in the Administrator and its affiliates, as directors, officers, members, managers,
employees, partners, stockholders or otherwise, and that the Administrator and directors, officers, members, managers, employees,
partners and stockholders of the Administrator and its affiliates are or may become similarly interested in the Corporation as
stockholders or otherwise.
(a) This
Agreement shall become effective as of the date hereof, and shall remain in force with respect to the Corporation for two years
thereafter, and thereafter continue from year to year, but only so long as such continuance is specifically approved at least annually
by (i) the Board of Directors of the Corporation and (ii) a majority of those Directors who are not parties to this Agreement or
“interested persons” (as defined in the Investment Company Act) of any such party.
(b) This
Agreement may be terminated at any time, without the payment of any penalty, by vote of the Directors of the Corporation, or by
the Administrator, upon 60 days written notice to the other party. This Agreement may not be assigned by a party without
the consent of the other party.
9. Amendments of
this Agreement. This Agreement may be amended pursuant to a written instrument by mutual consent of the parties.
10. Governing Law.
This Agreement shall be construed in accordance with laws of the State of New York applicable to contracts formed and to be performed
entirely within the State of New York and the applicable provisions of the Investment Company Act, if any. To the extent
that the applicable laws of the State of New York, or any of the provisions herein, conflict with the applicable provisions of
the Investment Company Act, if any, the latter shall control.
11. Entire Agreement.
This Agreement contains the entire agreement of the parties and supersedes all prior agreements, understandings and arrangements
with respect to the subject matter hereof.
12. Notices.
Any notice under this Agreement shall be given in writing, addressed and delivered or mailed, postage prepaid, to the other party
at its principal office.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first above written.
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TP FLEXIBLE INCOME FUND, INC. |
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By: |
/s/ X. Xxxxx Xxxxxxx |
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Name: X. Xxxxx Eliasek |
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Title: Chief Executive Officer & President |
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PROSPECT ADMINISTRATION LLC |
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By: |
X. Xxxxx Xxxxxxx |
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Name: X. Xxxxx Eliasek |
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Title: Managing Director |