FIFTH AMENDMENT AGREEMENT
Exhibit 10.1
AMENDMENT AGREEMENT (“Amendment”) dated as of May 4, 2016 to the Committed Facility Agreement dated as of December 11, 2013 between BNP Paribas Prime Brokerage, Inc. (“BNPP PB, Inc.”) and Berwyn Funding LLC (“Customer”).
WHEREAS, BNPP PB, Inc. and Customer previously entered into a Committed Facility Agreement dated as of December 11, 2013 (as amended from time to time, the “Agreement”);
WHEREAS, the parties hereto desire to amend the Agreement as provided herein;
NOW THEREFORE, in consideration of the mutual agreements provided herein, the parties agree to amend the Agreement as follows:
| 1. | Amendment to Facility Termination Events set forth in Section 13 of the Agreement |
| Subsection (c)(iii) of Section 13 is hereby amended effective as of January 1, 2016 be deleting all of the text following the semi-colon at the end of clause (C) and replacing it with the following proviso: |
provided, however, that for purposes of the foregoing clauses (A), (B) and (C) in respect of the Customer only, any prepayments of the Outstanding Debit Financing (whether voluntary or mandatory and including any prepayments in connection with a reduction of the Maximum Commitment Financing) will be disregarded and, in any such case, the Net Asset Value of the Customer as of the beginning of the relevant period will be adjusted to reflect such prepayment and any change in Net Asset Value during the relevant period will be calculated using such adjusted beginning Net Asset Value amount;
| 2. | Amendment to the Financing Rate set forth in Appendix B of the Agreement |
| The section titled “Financing Rate” in Appendix B to the Agreement is hereby amended effective on and after January 2, 2017 by replacing the words “110 bps” wherever it appears under the Customer Debit Rate with the words “135 bps”. |
| 3. | Amendment to the Commitment Fee set forth in Appendix B of the Agreement |
| The section titled “Commitment Fee” in Appendix B to the Agreement is hereby amended effective on and after January 2, 2017 by replacing the words “(c) 55 bps” with the following words: |
“(c) 85 bps; provided, however, that (c) shall be 65 bps on any day on which the Outstanding Debit Financing is 75% or more of the Maximum Commitment Financing”
| 4. | Representations |
| Each party represents to the other party that all representations contained in the Agreement are true and accurate as of the date of this Amendment and that such representations are deemed to be given or repeated by each party, as the case may be, on the date of this Amendment, in each case, however, except for any representation that refers to a specific date, as to which each party represents to the other party that such representation is true and accurate as of such specific date and is deemed to be given or repeated by each party, as the case may be, as of such specific date. |
| 5. | Miscellaneous |
| (a) | Definitions. Capitalized terms used in this Amendment and not otherwise defined herein shall have the meanings specified for such terms in the Agreement. |
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| (b) | Entire Agreement. The Agreement as amended and supplemented by this Amendment constitutes the entire agreement and understanding of the parties with respect to its subject matter and supersedes all oral communications and prior writings (except as otherwise provided herein) with respect thereto. Except as expressly set forth herein, the terms and conditions of the Agreement remain in full force and effect. |
| (c) | Counterparts. This Amendment may be executed and delivered in counterparts (including by facsimile transmission), each of which will be deemed an original. |
| (d) | Headings. The headings used in this Amendment are for convenience of reference only and are not to affect the construction of or to be taken into consideration in interpreting this Amendment. |
| (e) | Governing Law. This Amendment will be governed by and construed in accordance with the laws of the State of New York (without reference to choice of law doctrine). |
(Signature page follows)
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IN WITNESS WHEREOF the parties have executed this Amendment with effect from the first date specified on the first page of this Amendment.
| BNP PARIBAS PRIME BROKERAGE, INC. | BERWYN FUNDING LLC | |||
| /s/ Xxxxxxx Xxxx | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: Xxxxxxx Xxxx | Name: Xxxxxx X. Xxxxxxxxxx | |||
| Title: Managing Director | Title: Executive Vice President | |||
| /s/ XX Xxxx | |
| Name: XX Xxxx | |
| Title: Managing Director | |
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