AMENDMENT NO. 13 TO LOAN AND SERVICING AGREEMENT
Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 13 TO
LOAN AND SERVICING
AGREEMENT
THIS AMENDMENT NO. 13 TO LOAN AND SERVICING AGREEMENT, dated as of December 21, 2018 (this "Amendment") is entered into by and among BDCA Funding I, LLC, as the borrower (in such capacity, the "Borrower"), Business Development Corporation of America, as the servicer (in such capacity, the "Servicer") and seller (in such capacity, the "Seller"), Xxxxx Fargo Bank, National Association, as the administrative agent (in such capacity, the "Administrative Agent"), each of the Lenders and Lender Agents party hereto and U.S. Bank National Association, as Collateral Agent, Account Bank and Collateral Custodian. Capitalized terms used but not defined herein have the meanings provided in the Agreement (as defined below).
RECITALS
WHEREAS, reference is made to the Loan and Servicing Agreement, dated as of July 24, 2012 (as amended, modified, waived, supplemented or restated from time to time, the "Agreement"), by and among the Borrower, the Servicer, the Seller, the Conduit Lenders, the Institutional Lenders, the Lender Agents, the Administrative Agent, the Collateral Agent, the Account Bank and the Collateral Custodian; and
WHEREAS, the parties hereto desire to further amend the Agreement in certain respects as specified herein, pursuant to and in accordance with Section 11.01 of the Agreement;
NOW, THEREFORE, based upon the above Recitals, the mutual premises and agreements contained herein, and 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:
SECTION 1. AMENDMENT.
The 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 Agreement attached as Exhibit A hereto.
SECTION 2. AGREEMENT IN FULL FORCE AND EFFECT AS AMENDED.
Except as specifically amended hereby, all provisions of the Agreement shall remain in full force and effect. After this Amendment becomes effective, all references to the Agreement and corresponding references thereto or therein such as "hereof", "herein", or words of similar effect referring to the Agreement shall be deemed to mean the Agreement as amended hereby. This Amendment shall not be deemed to expressly or impliedly waive, amend or supplement any provision of the Agreement other than as expressly set forth herein.
SECTION 3. REPRESENTATIONS.
Each of the Borrower and the Servicer, severally for itself only, represents and warrants as of the date of this Amendment as follows:
(i) it is duly incorporated or organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization;
(ii) the execution, delivery and performance by it of this Amendment and the Agreement as amended hereby are within its powers, have been duly authorized, and do not contravene (A) its charter, by-laws, or other organizational documents, or (B) any Applicable Law;
(iii) no consent, license, permit, approval or authorization of, or registration, filing or declaration with any governmental authority, is required in connection with the execution, delivery, performance, validity or enforceability of this Amendment and the Agreement as amended hereby by or against it;
(iv) this Amendment has been duly executed and delivered by it and is effective to amend the Agreement as contemplated by the amendment provisions thereof;
(v) each of this Amendment and the Agreement as amended hereby constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally or by general principles of equity; and
(vi) there is no Unmatured Event of Default, Event of Default or Servicer Termination Event.
SECTION 4. CONDITIONS TO EFFECTIVENESS.
The effectiveness of this Amendment is conditioned upon: (i) payment (to the extent invoiced) of outstanding fees of each Lender and any invoiced outstanding fees and disbursements of the Administrative Agent (if any); (ii) delivery and execution of certain amendments to the Xxxxx Fargo Lender Fee Letter; and (iii) delivery of executed signature pages by all parties hereto to the Administrative Agent.
SECTION 5. MISCELLANEOUS.
(a) This Amendment may be executed in any number of counterparts (including by facsimile or e-mail), and by the different parties hereto on the same or separate counterparts, each of which shall be deemed to be an original instrument but all of which together shall constitute one and the same agreement.
(b) The descriptive headings of the various sections of this Amendment are inserted for convenience of reference only and shall not be deemed to affect the meaning or construction of any of the provisions hereof.
(c) This Amendment may not be amended or otherwise modified except as provided in the Agreement.
(d) The failure or unenforceability of any provision hereof shall not affect the other provisions of this Amendment.
(e) Whenever the context and construction so require, all words used in the singular number herein shall be deemed to have been used in the plural number, and vice versa, and the masculine gender shall include the feminine and neuter and the neuter shall include the masculine and feminine.
(f) This Amendment and the Agreement represent the final agreement among the parties with respect to the matters set forth therein and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements among the parties. There are no unwritten oral agreements among the parties with respect to such matters.
(g) THIS AMENDMENT SHALL, IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING DIRECTLY OR INDIRECTLY OUT OF, UNDER OR IN CONNECTION WITH THIS AMENDMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREUNDER.
(h) Each party hereto hereby irrevocably submits to the non-exclusive jurisdiction of any New York State or Federal court sitting in New York City in any action or proceeding arising out of or relating to the Amendment, and each party hereto hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by law, in such Federal court. The parties hereto hereby irrevocably waive, to the fullest extent they may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding. The parties hereto agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(i) By executing this Amendment, the Administrative Agent and the Lenders constituting the Required Lenders hereby direct U.S. Bank National Association in its various capacities to execute this Amendment in the form presented to it.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.
| THE BORROWER: | BDCA FUNDING I, LLC |
| By: BUSINESS DEVELOPMENT | |
| CORPORATION OF AMERICA, Member of | |
| BDCA Funding I, LLC |
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxxx | ||
| Title: Chief Financial Officer |
| BDCA Funding I, LLC | |
| c/o Benefit Street Partners LLC | |
| 0 Xxxx 00xx Xxxxxx, Xxxxx 0000 | |
| Xxx Xxxx, XX 00000 | |
| Attention: Chief Financial Officer | |
| Facsimile No: (866) 421- 6244 | |
| Confirmation No: (401) 277- 5557 |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
| THE SERVICER: | BUSINESS DEVELOPMENT |
| CORPORATION OF AMERICA |
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxxx | ||
| Title: Chief Financial Officer |
| Business Development Corporation of America | |
| c/o Benefit Street Partners LLC | |
| 0 Xxxx 00xx Xxxxxx, Xxxxx 0000 | |
| Xxx Xxxx, XX 00000 | |
| Attention: Chief Financial Officer | |
| Facsimile No: (000) 000-0000 | |
| Confirmation No: (000) 000-0000 |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
| THE SELLER: | BUSINESS DEVELOPMENT |
| CORPORATION OF AMERICA |
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxxx | ||
| Title: Chief Financial Officer |
| Business Development Corporation of America | |
| c/o Benefit Street Partners LLC | |
| 0 Xxxx 00xx Xxxxxx, Xxxxx 0000 | |
| Xxx Xxxx, XX 00000 | |
| Attention: Chief Financial Officer | |
| Facsimile No: (000) 000-0000 | |
| Confirmation No: (000) 000-0000 |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
| THE ADMINISTRATIVE AGENT: | XXXXX FARGO BANK, N.A. |
| By: | /s/ Xxxxx Xxxx | |
| Name: Xxxxx Xxxx | ||
| Title: Vice President |
| Xxxxx Fargo Bank, National Association | |
| Duke Energy Center | |
| 000 X. Xxxxx Xxxxxx, 0xx Xxxxx | |
| MAC D1086-051 | |
| Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 | |
| Attention: Corporate Debt Finance | |
| Confirmation No: (000) 000-000-0000 | |
| All electronic dissemination of Notices should be sent to xxx.xxxxxxx@xxxxxxxxxx.xxx |
| INSTITUTIONAL LENDER: | XXXXX FARGO BANK, N.A. |
| By: | /s/ Xxxxx Sunday | |
| Name: Xxxxx Sunday | ||
| Title: Managing Director |
| Xxxxx Fargo Bank, N.A. | |
| Duke Energy Center | |
| 000 X. Xxxxx Xxxxxx, 0xx Xxxxx | |
| MAC D1086-051 | |
| Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 | |
| Attention: Corporate Debt Finance | |
| Confirmation: (000) 000-0000 | |
| All electronic dissemination of Notices should be sent to xxx.xxxxxxx@xxxxxxxxxx.xxx and xx.xxxxxxxx@xxxxxxxxxx.xxx |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
| INSTITUTIONAL LENDER: | TIAA, FSB |
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | ||
| Title: Vice President |
| TIAA, FSB | |
| 00000 Xxxxxxxxx Xxxxx, Xxxxx 000X | |
| Xxxxx Xxxxxx, XX 00000 | |
| Attention: Xxxx Xxxx | |
| Facsimile No.: 000-000-0000 | |
| Confirmation No: 000-000-0000 |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
| INSTITUTIONAL LENDER: | ZB, N.A., DBA CALIFORNIA BANK & TRUST |
| By: | /s/ Xxxxxxxxxxx X. Xxxxxxx | |
| Name: Xxxxxxxxxxx X. Xxxxxxx | ||
| Title: Executive Vice President |
| 0000 Xxxx Xxxxxx, Xxxxx 0000 | |
| Xxxxxx, XX 00000 | |
| Attention: Xxxxx Xxxxxxx | |
| Facsimile: 000-000-0000 | |
| Email: Xxxxxxxxxxx.Xxxxxxx@xxxxx.xxx | |
| Confirmation No: 000-000-0000 |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
| INSTITUTIONAL LENDER: | NBH BANK |
| By: | /s/ Xxxxxx X. Xxxxxxx | |
| Name: Xxxxxx X. Xxxxxxx | ||
| Title: Managing Director |
| NBH Bank | |
| 00000 X. 00xx Xxxxxx | |
| Xxxxxxxx Xxxx, XX 00000 | |
| Attention: Xxx Xxxxxxx | |
| Confirmation No: 000-000-0000 | |
| Email: xxxxxxxx@xxxxxxx.xxx |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
| INSTITUTIONAL LENDER: | XXXXXXX XXXXX BANK, N.A. |
| By: | /s/ Xxxxxxxxx X. Xxxx | |
| Name: Xxxxxxxxx X. Xxxx | ||
| Title: S.V.P. |
| Xxxxxxx Xxxxx Bank, N.A. | |
| 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 | |
| Xxxxxxxxx, XX 00000 | |
| Attention: Xxxxxxxxx X. Xxxx | |
| Confirmation No: 000-000-0000 | |
| Email: xxxx.xxxx@xxxxxxxxxxxx.xxx |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
| INSTITUTIONAL LENDER: | FIFTH THIRD BANK |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Officer |
| Fifth Third Bank | |
| 00 Xxxxxxxx Xxxxxx Xxxxx, XX 000000 | |
| Xxxxxxxxxx, XX 00000 | |
| Attention: Xxxxxx Xxxxxxxxx | |
| Tel: (000) 000 0000 | |
| Facsimile No.: (000) 000 0000 | |
| Email: Xxxxxx.Xxxxxxxxx@00.xxx |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
| INSTITUTIONAL LENDER: | sTIFEL BANK & TRUST |
| By: | /s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | ||
| Title: Vice President |
| Stifel Bank & Trust | |
| 000 X. Xxxxxxxx, 00xx Xxxxx | |
| Xx. Xxxxx, XX 00000 | |
| Attention: Xxx Xxxx | |
| Telephone: 000-000-0000 | |
| email: xxxxx@xxxxxxxxxx.xxx |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
| INSTITUTIONAL LENDER: | CRESCOM BANK |
| By: | /s/ Xxxx X. Xxxxxxxx | |
| Name: Xxxx X. Xxxxxxxx | ||
| Title: Executive Vice President |
| CresCom Bank | |
| 0000 00xx Xxxxxx Xxxxx, Xxxxx 000 | |
| Xxxxxx Xxxxx, XX 00000 | |
| Attention: Xxxx X. Xxxxxxxx | |
| Telephone: 000-000-0000 | |
| email: xxxxxxxxx@xxxxxxxxxxxxx.xxx |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
| THE COLLATERAL AGENT: | U.S. BANK NATIONAL ASSOCIATION |
| By: | /s/ Xxxxxxx Xxxx | |
| Name: Xxxxxxx Xxxx | ||
| Title: Vice President |
| U.S. Bank National Association | |
| Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx | |
| Xxxxxx, XX 00000 | |
| Attention: Xxxxxxx Xxxx, Vice President Facsimile No: (000) 000-0000 | |
| Confirmation No: (000) 000-0000 | |
| Email: xxxxxxx.xxxx@xxxxxx.xxx |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
| THE ACCOUNT BANK: | U.S. BANK NATIONAL ASSOCIATION |
| By: | /s/ Xxxxxxx Xxxx | |
| Name: Xxxxxxx Xxxx | ||
| Title: Vice President |
| U.S. Bank National Association | |
| Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx | |
| Xxxxxx, XX 00000 | |
| Attention: Xxxxxxx Xxxx, Vice President Facsimile No: (000) 000-0000 | |
| Confirmation No: (000) 000-0000 | |
| Email: xxxxxxx.xxxx@xxxxxx.xxx |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
| THE COLLATERAL CUSTODIAN: | U.S. BANK NATIONAL ASSOCIATION |
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: Assistant Vice President |
| U.S. Bank National Association | |
| 0000 Xxxxx Xxx | |
| Xxxxxxxx, Xxxxx Xxxxxxxx 00000 | |
| Attention: Xxxxx Xxxxxxx | |
| Facsimile No: (000) 000-0000 | |
| Confirmation No: (000) 000-0000 | |
| Email: xxxxxx.xxxxxxx@xxxxxx.xxx |
| With a copy to: | |
| U.S. Bank National Association | |
| Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx | |
| Xxxxxx, XX 00000 | |
| Attention: Xxxxxxx Xxxx, Vice President Facsimile No: (000) 000-0000 | |
| Confirmation No: (000) 000-0000 | |
| Email: xxxxxxx.xxxx@xxxxxx.xxx |
EXECUTION COPY
(Conformed through Amendment 12No.
13)
Up to U.S. $520,000,000545,000,000
Dated as of July 24, 2012
Among
BDCA FUNDING I, LLC,
as the Borrower
BUSINESS DEVELOPMENT CORPORATION OF AMERICA,
as the Servicer and the Seller
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as the Administrative Agent
EACH OF THE CONDUIT LENDERS AND INSTITUTIONAL LENDERS FROM TIME TO
TIME PARTY HERETO,
as the Lenders
EACH OF THE LENDER AGENTS FROM TIME TO TIME PARTY HERETO,
as the Lender Agents
and
U.S. BANK NATIONAL ASSOCIATION,
as the Collateral Agent, Account Bank and Collateral Custodian
| TABLE OF CONTENTS | ||
| Page | ||
| ARTICLE I. DEFINITIONS | 1 | |
| Section 1.01 | Certain Defined Terms | 1 |
| Section 1.02 | Other Terms | 35 |
| Section 1.03 | Computation of Time Periods | 35 |
| Section 1.04 | Interpretation | 35 |
| ARTICLE II. THE FACILITY | 36 | |
| Section 2.01 | Variable Funding Note and Advances | 36 |
| Section 2.02 | Procedure for Advances | 37 |
| Section 2.03 | Determination of Yield | 39 |
| Section 2.04 | Remittance Procedures | 39 |
| Section 2.05 | Instructions to the Collateral Agent and the Account Bank | 43 |
| Section 2.06 | Borrowing Base Deficiency Payments | 43 |
| Section 2.07 | Substitution and Sale of Loan Assets; Affiliate Transactions | 44 |
| Section 2.08 | Payments and Computations, Etc | 48 |
| Section 2.09 | Non-Usage Fee | 49 |
| Section 2.10 | Increased Costs; Capital Adequacy | 49 |
| Section 2.11 | Taxes | 51 |
| Section 2.12 | Collateral Assignment of Agreements | 52 |
| Section 2.13 | Grant of a Security Interest | 53 |
| Section 2.14 | Evidence of Debt | 53 |
| Section 2.15 | Survival of Representations and Warranties | 53 |
| Section 2.16 | Release of Loan Assets | 54 |
| Section 2.17 | Treatment of Amounts Received by the Borrower | 54 |
| Section 2.18 | Prepayment; Termination | 54 |
| Section 2.19 | Extension of Reinvestment Period | 55 |
| Section 2.20 | Collections and Allocations | 55 |
| Section 2.21 | Reinvestment of Principal Collections | 57 |
| Section 2.22 | Additional Lenders | 57 |
| ARTICLE III. CONDITIONS PRECEDENT | 58 | |
| Section 3.01 | Conditions Precedent to Effectiveness | 58 |
| i |
| LIST OF SCHEDULES AND EXHIBITS | |
| SCHEDULES | |
| SCHEDULE I | Conditions Precedent Documents |
| SCHEDULE II | Prior Names, Tradenames, Fictitious Names and “Doing Business As” Names |
| SCHEDULE III | Eligibility Criteria |
| SCHEDULE IV | Agreed-Upon Procedures for Independent Public Accountants |
| SCHEDULE V | Loan Asset Schedule |
| EXHIBITS | |
| EXHIBIT A | Form of Approval Notice |
| EXHIBIT B | Form of Assignment of Mortgage |
| EXHIBIT C | Form of Borrowing Base Certificate |
| EXHIBIT D | Form of Disbursement Request |
| EXHIBIT E | Form of Joinder Supplement |
| EXHIBIT F | Form of Notice of Borrowing |
| EXHIBIT G | Form of Notice of Reduction (Reduction of Advances Outstanding) |
| EXHIBIT H | [Reserved] |
| EXHIBIT I | Form of Variable Funding Note |
| EXHIBIT J | Form of Notice of Lien Release Dividend and Request for Consent |
| EXHIBIT K | Form of Certificate of Closing Attorneys |
| EXHIBIT L | Form of Servicing Report |
| EXHIBIT M | Form of Servicer’s Certificate (Servicing Report) |
| EXHIBIT N | Form of Release of Required Loan Documents |
| EXHIBIT O | Form of Transferee Letter |
| EXHIBIT P | Form of Power of Attorney for Servicer |
| EXHIBIT Q | Form of Power of Attorney for Borrower |
| EXHIBIT R | Form of Servicer’s Certificate (Loan Asset Register) |
| ANNEXES | |
| ANNEX A | Commitments |
| - v - |
This LOAN AND SERVICING AGREEMENT is made as of July 24, 2012, among:
(1) BDCA FUNDING I, LLC, a Delaware limited liability company (together with its successors and assigns in such capacity, the “Borrower”);
(2) BUSINESS DEVELOPMENT CORPORATION OF AMERICA, a Maryland corporation, as the Servicer (as defined herein) and the Seller (as defined herein);
(3) EACH OF THE CONDUIT LENDERS FROM TIME TO TIME PARTY HERETO, as a Conduit Lender;
(4) EACH OF THE INSTITUTIONAL LENDERS FROM TIME TO TIME PARTY HERETO, as an Institutional Lender;
(5) EACH OF THE LENDER AGENTS FROM TIME TO TIME PARTY HERETO, as a Lender Agent;
(6) XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (the “Administrative Agent”); and
(7) U.S. BANK NATIONAL ASSOCIATION, as the Collateral Agent (together with its successors and assigns in such capacity, the “Collateral Agent”), the Account Bank (as defined herein) and the Collateral Custodian (together with its successors and assigns in such capacity, the “Collateral Custodian”).
PRELIMINARY STATEMENT
The Lenders have agreed, on the terms and conditions set forth herein, to provide a secured revolving credit facility which shall provide for Advances from time to time in an aggregate principal amount not to exceed the Borrowing Base. The proceeds of the Advances will be used to finance the Borrower’s purchase, on a “true sale” basis, of Eligible Loan Assets from the Seller, approved by the Administrative Agent, pursuant to the Purchase and Sale Agreement between the Borrower and the Seller. Accordingly, the parties agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01 Certain Defined Terms.
(a) Certain capitalized terms used throughout this Agreement are defined above or in this Section 1.01.
(b) As used in this Agreement and the exhibits and schedules thereto (each of which is hereby incorporated herein and made a part hereof), the following terms shall have the priority or enforceability of the Collateral Agent’s, the Administrative Agent’s or the other Secured Parties’ lien on the Collateral Portfolio.
| 1 |
“Material Modification” means any amendment or waiver of, or modification or supplement to, a Loan Agreement governing a Loan Asset executed or effected on or after the Cut-Off Date for such Loan Asset which:
(a) reduces or forgives any or all of the principal amount due under such Loan Asset;
(b) delays or extends the maturity date for such Loan Asset;
(c) waives one or more interest payments, permits any interest due in cash to be deferred or capitalized and added to the principal amount of such Loan Asset (other than any deferral or capitalization already allowed by the terms of the Loan Agreement of any PIK Loan Asset) or reduces the amount of interest due when the Interest Coverage Ratio under such Loan Agreement is less than 150% (prior to giving effect to such reduction in interest expense);
(d) contractually or structurally subordinates such Loan Asset by operation of a priority of payments, turnover provisions, the transfer of assets in order to limit recourse to the related Obligor or the granting of Liens (other than Permitted Liens) on any of the Underlying Collateral securing such Loan Asset;
(e) substitutes, alters or releases the Underlying Collateral securing such Loan Asset and any such substitution, alteration or release, as determined in the reasonable discretion of the Administrative Agent, materially and adversely affects the value of such Loan Asset, provided, that the foregoing shall not apply to any release in conjunction with a relatively contemporaneous disposition by the Obligor accompanied by a mandatory reinvestment of net proceeds or mandatory repayment of the applicable loan facility with the net proceeds; or
(f) amends, waives, forbears, supplements or otherwise modifies (i) the meaning of “Net Leverage Ratio,” “Net Senior Leverage Ratio,” “Interest Coverage Ratio” or “Permitted Liens” or any respective comparable definitions in the Loan Agreement for such Loan Asset or (ii) any term or provision of such Loan Agreement referenced in or utilized in the calculation of the “Net Leverage Ratio,” “Net Senior Leverage Ratio,” “Interest Coverage Ratio” or “Permitted Liens” or any respective comparable definitions for such Loan Asset, in either case in a manner that, in the reasonable judgment of the Administrative Agent, is materially adverse to the Secured Parties; provided that in connection with any Revenue Recognition Implementation or any Operating Lease Implementation, the Administrative Agent may waive any Material Modification resulting from such implementation pursuant to this clause (f).
“Maximum
Facility Amount” means the aggregate Commitments as
then in effect, which amount shall not exceed $520,000,000545,000,000;
provided that at all times after the Reinvestment Period, the Maximum Facility Amount shall mean the aggregate Advances
Outstanding at such time.
“Minimum Equity Amount” means $125,000,000.
| 2 |
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
| THE BORROWER: | BDCA FUNDING I, LLC |
| By: BUSINESS DEVELOPMENT | |
| CORPORATION OF AMERICA, Member of | |
| BDCA Funding I, LLC |
| By: | ||
| Name: Xxxxxxx X. Xxxxxxxxx | ||
| Title: Chief Financial Officer |
| BDCA Funding I, LLC | |
| c/o Benefit Street Partners LLC | |
| 0 Xxxx 00xx Xxxxxx, Xxxxx 0000 | |
| Xxx Xxxx, XX 00000 | |
| Attention: Chief Financial Officer | |
| Facsimile No: (866) 421- 6244 | |
| Confirmation No: (401) 277- 5557 |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
BDCA Funding I, LLC
| INSTITUTIONAL LENDER: | XXXXX FARGO BANK, N.A. |
| By: | ||
| Name: | ||
| Title: |
| Xxxxx Fargo Bank, N.A. | |
| Duke Energy Center | |
| 000 X. Xxxxx Xxxxxx, 0xx Xxxxx | |
| MAC D1086-051 | |
| Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 | |
| Attention: Corporate Debt Finance | |
| Confirmation: (000) 000-0000 | |
| All electronic dissemination of Notices should | |
| be sent to xxx.xxxxxxx@xxxxxxxxxx.xxx and | |
| xx.xxxxxxxx@xxxxxxxxxx.xxx |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
BDCA Funding I, LLC
| INSTITUTIONAL LENDER: | TIAA, FSB |
| By: | ||
| Name: | ||
| Title: |
| TIAA, FSB | |
| 00000 Xxxxxxxxx Xxxxx, Xxxxx 000X | |
| Xxxxx Xxxxxx, XX 00000 | |
| Attention: Xxxx Xxxx | |
| Facsimile No.: 000-000-0000 | |
| Confirmation No: 000-000-0000 |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
BDCA Funding I, LLC
| INSTITUTIONAL LENDER: | ZB, N.A., DBA CALIFORNIA BANK & TRUST |
| By: | ||
| Name: | ||
| Title: |
| 0000 Xxxx Xxxxxx, Xxxxx 0000 | |
| Xxxxxx, XX 00000 | |
| Attention: Xxxxx Xxxxxxx | |
| Facsimile: 000-000-0000 | |
| Email: Xxxxxxxxxxx.Xxxxxxx@xxxxx.xxx | |
| Confirmation No: 000-000-0000 |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
BDCA Funding I, LLC
| INSTITUTIONAL LENDER: | NBH BANK |
| By: | ||
| Name: | ||
| Title: |
| NBH Bank | |
| 00000 X. 00xx Xxxxxx | |
| Xxxxxxxx Xxxx, XX 00000 | |
| Attention: Xxx Xxxxxxx | |
| Confirmation No: 000-000-0000 | |
| Email: xxxxxxxx@xxxxxxx.xxx |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
| INSTITUTIONAL LENDER: | XXXXXXX XXXXX BANK, N.A. |
| By: | ||
| Name: | ||
| Title: |
| Xxxxxxx Xxxxx Bank, N.A. | |
| 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 | |
| Xxxxxxxxx, XX 00000 | |
| Attention: Xxxxxxxxx X. Xxxx | |
| Confirmation No: 000-000-0000 | |
| Email: xxxx.xxxx@xxxxxxxxxxxx.xxx |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
| INSTITUTIONAL LENDER: | FIFTH THIRD BANK |
| By: | ||
| Name: | ||
| Title: |
| Fifth Third Bank | |
| 00 Xxxxxxxx Xxxxxx Xxxxx, XX 000000 | |
| Xxxxxxxxxx, XX 00000 | |
| Attention: Xxxxxx Xxxxxxxxx | |
| Tel: (000) 000 0000 | |
| Facsimile No.: (000) 000 0000 | |
| Email: Xxxxxx.Xxxxxxxxx@00.xxx |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
| INSTITUTIONAL LENDER: | STIFEL BANK & TRUST |
| By: | ||
| Name: | ||
| Title: |
| Stifel Bank & Trust | |
| 000 X. Xxxxxxxx, 00xx Xxxxx | |
| Xx. Xxxxx, XX 00000 | |
| Attention: Xxx Xxxx | |
| Telephone: 000-000-0000 | |
| email: xxxxx@xxxxxxxxxx.xxx |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
| INSTITUTIONAL LENDER: | CRESCOM BANK |
| By: | ||
| Name: | ||
| Title: |
| CresCom Bank | |
| 0000 00xx Xxxxxx Xxxxx, Xxxxx 000 | |
| Xxxxxx Xxxxx, XX 00000 | |
| Attention: Xxxx X. Xxxxxxxx | |
| Telephone: 000-000-0000 | |
| email: xxxxxxxxx@xxxxxxxxxxxxx.xxx |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
| THE COLLATERAL AGENT: | U.S. BANK NATIONAL ASSOCIATION |
| By: | ||
| Name: | ||
| Title: Vice President |
| U.S. Bank National Association | |
| Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx | |
| Xxxxxx, XX 00000 | |
| Attention: | |
| President Facsimile No: | |
| Confirmation No: (000) 000- | |
| Email: |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
| THE ACCOUNT BANK: | U.S. BANK NATIONAL ASSOCIATION |
| By: | ||
| Name: | ||
| Title: Vice President |
| U.S. Bank National Association | |
| Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx | |
| Xxxxxx, XX 00000 | |
| Attention: | |
| President Facsimile No: | |
| Confirmation No: (000) 000- | |
| Email: |
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
| THE COLLATERAL CUSTODIAN: | U.S. BANK NATIONAL ASSOCIATION |
| By: | ||
| Name: | ||
| Title: |
| U.S. Bank National Association | |
| 0000 Xxxxx Xxx | |
| Xxxxxxxx, Xxxxx Xxxxxxxx 00000 | |
| Attention: Xxxxx Xxxxxxx | |
| Facsimile No: (000) 000-0000 | |
| Confirmation No: (000) 000-0000 | |
| Email: xxxxxx.xxxxxxx@xxxxxx.xxx |
| With a copy to: | |
| U.S. Bank National Association | |
| Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx | |
| Xxxxxx, XX 00000 | |
| Attention: | |
| President Facsimile No: | |
| Confirmation No: (000) 000- | |
| Email: |
EXECUTION COPY
Conformed through Amendment 12No.13
SCHEDULE I
CONDITIONS PRECEDENT DOCUMENTS
As required by Section 3.01 of the Agreement, each of the following items must be delivered to the Administrative Agent and the Lender Agents prior to the effectiveness of the Agreement:
(a) A copy of this Agreement duly executed by each of the parties hereto;
(b) A certificate of the Secretary, Assistant Secretary or managing member, as applicable, of each of the Borrower and BDCA, dated the date of this Agreement, certifying (i) the names and true signatures of the incumbent officers of such Person authorized to sign on behalf of such Person the Transaction Documents to which it is a party (on which certificate the Administrative Agent, the Lenders and the Lender Agents may conclusively rely until such time as the Administrative Agent and the Lender Agents shall receive from the Borrower or BDCA, as applicable, a revised certificate meeting the requirements of this paragraph (b)(i)), (ii) that the copy of the certificate of formation or articles of incorporation of such Person, as applicable, is a complete and correct copy and that such certificate of formation or articles of incorporation have not been amended, modified or supplemented and are in full force and effect, (iii) that the copy of the limited liability company agreement or by-laws, as applicable, of such Person are a complete and correct copy, and that such limited liability company agreement or by-laws have not been amended, modified or supplemented and are in full force and effect, and (iv) the resolutions of the board of directors of such Person approving and authorizing the execution, delivery and performance by such Person of the Transaction Documents to which it is a party;
(c) A good standing certificate, dated as of a recent date for each of the Borrower and BDCA, issued by the Secretary of State of such Person’s State of formation or organization, as applicable;
(d) Duly executed Powers of Attorney from the Borrower and BDCA;
(e) Duly executed Variable Funding Note;
(f) Financing statements (the "Facility Financing Statements") describing the Collateral Portfolio, and (i) naming the Borrower as debtor and the Collateral Agent, on behalf of the Secured Parties, as secured party, (ii) naming the Seller as debtor, the Borrower as assignor and the Collateral Agent, on behalf of the Secured Parties, as secured party/total assignee and (iii) other, similar instruments or documents, as may be necessary or, in the opinion of the Administrative Agent, desirable under the UCC of all appropriate jurisdictions or any comparable law to perfect the Collateral Agent’s, on behalf of the Secured Parties, interests in all of the Collateral Portfolio;
(g) Financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral Portfolio previously granted by the Seller;
| Sch. I- 1 |
ANNEX A
| Conduit Lender | Commitment | |
| Institutional Lender | Commitment | |
| Xxxxx Fargo Bank, N.A. | $270,000,000.00 | |
| ZB, N.A., DBA California Bank & Trust | $40,000,000.00 | |
| NBH Bank | $25,000,000.00 | |
| Xxxxxxx Xxxxx Bank, N.A. | $40,000,000.00 | |
| Fifth Third Bank | $75,000,000.00 | |
| TIAA, FSB | $50,000,000.00 | |
| Stifel Bank & Trust | $20,000,000.00 | |
| CresCom Bank | $25,000,000.00 |
| Annex A |
