AMENDED AND RESTATED INVESTMENT SUB-ADVISORY AGREEMENT
AMENDED
AND RESTATED INVESTMENT SUB-ADVISORY AGREEMENT
THIS AMENDED AND RESTATED INVESTMENT
SUB-ADVISORY AGREEMENT (“Agreement”)
made as of the 13th day of January 2011, by and between BDCA
Adviser, LLC, a Delaware limited liability company (the “Adviser”)
and Main Street Capital Corporation, a Maryland corporation (the “Sub-Adviser”).
WHEREAS, Business Development
Corporation of America, a Maryland corporation (the “BDC”), is
a newly organized closed-end investment company that has elected to be treated
as a business development company under the Investment Company Act of 1940, as
amended (the “1940
Act”);
WHEREAS, the Adviser and the
Sub-Adviser intend to register under the Investment Advisers Act of 1940, as
amended (the “Advisers
Act”), and after such registration provide the investment management
services described herein;
WHEREAS, the Adviser has been
retained to act as the investment adviser to the BDC pursuant to an Investment
Advisory and Management Services Agreement dated October 28, 2010, a copy of
which is included as Exhibit
A to this Agreement and is incorporated by reference herein (the “Advisory
Agreement”);
WHEREAS, Section 1(c) of the
Advisory Agreement permits the Adviser, subject to the supervision and direction
of the BDC’s board of directors (the “Board”),
to delegate its duties thereunder to other investment advisers, subject to the
requirements of the 1940 Act;
WHEREAS, the Adviser desires
to retain the Sub-Adviser to assist it in fulfilling its obligations under the
Advisory Agreement, and the Sub-Adviser is willing to render such services
subject to the terms and conditions set forth in this Agreement;
WHEREAS, Adviser and Sub-Adviser entered into
that Investment Sub-Advisory Agreement dated as of October 28, 2010 (the “Original
Agreement”);
WHEREAS, Advisor and Sub-Advisor now desire to
amend and restate in its entirety the Original Agreement by entering into this
Agreement; and
WHEREAS, this Agreement has
been approved in accordance with the provisions of the 1940 Act.
NOW, THEREFORE, in
consideration of the premises and for other good and valuable consideration, the
parties hereby agree as follows:
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1.
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DUTIES
OF THE SUB-ADVISER.
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(a) Retention of Sub-Adviser. The
Adviser hereby employs the Sub-Adviser to assist the Adviser in managing the
investment and reinvestment of the assets of the BDC, subject to oversight by
the Board, for the period and upon the terms herein set forth.
(b) Responsibilities of
Sub-Adviser. Without limiting the generality of the foregoing, the
Sub-Adviser shall, during the term and subject to the provisions of this
Agreement, manage the investment and reinvestment of the assets of the BDC,
subject to oversight by the Board and supervision by the
Adviser. Without limiting the generality of this delegation of
investment responsibility, the Sub-Adviser shall perform the following
functions: (i) make recommendations to the Adviser as to the composition of the
portfolio of the BDC, the nature and timing of the changes therein and the
manner of implementing such changes; (ii) assist the Adviser in identifying,
evaluating and negotiating the structure of the investments made by the BDC;
(iii) assist the Adviser in closing and monitoring the BDC’s investments; (iv)
assist the Adviser in determining the securities and other assets that the BDC
will purchase, retain, or sell; (v) assist the Adviser in performing due
diligence on prospective portfolio companies; and (vi) provide the Adviser and
the BDC with such other investment advisory, research and related services as
the Adviser or BDC may, from time to time, reasonably require for the investment
of its funds. Notwithstanding the foregoing, however, all investment decisions
will ultimately be the responsibility of the Adviser, subject to oversight by
the Board. Furthermore, the parties acknowledge and agree that the
Sub-Adviser shall be required to provide only the services expressly described
in Section 1(b), and shall have no responsibility to provide any other services
to the Adviser or the BDC, including, but not limited to, administrative (such
as valuation-related services), management or other similar
services.
(c) Acceptance of Employment. The
Sub-Adviser hereby agrees during the term hereof to render the services
described herein for the compensation provided herein, subject to oversight by
the BDC’s Board and supervision by the Adviser and the limitations contained
herein. The Sub-Adviser shall carry out its responsibilities under this
Agreement in compliance with: (i) the BDC’s investment objectives, policies and
restrictions as set forth in the BDC’s Registration Statement on Form N-2 (File
No. 333-166636) filed with the U.S. Securities and Exchange Commission (the
“SEC”) on
May 7, 2010, as the same shall be amended from time to time (as amended, the
“Registration
Statement”); (ii) such policies, directives, regulatory restrictions and
compliance policies as the Adviser may from time to time establish or issue and
communicate to the Sub-Adviser in writing; (iii) investment guidelines that may
be adopted and from time to time amended and/or restated by the Board; and (iv)
applicable law and related regulations and the BDC’s charter and bylaws. The
Adviser shall promptly notify the Sub-Adviser in writing of changes to (i), (ii)
or (iii) above and any change to the BDC’s charter or bylaws, and shall notify
the Sub-Adviser in writing of changes to applicable law and related regulations
promptly after it becomes aware of such changes. In no event shall the
Sub-Adviser be held responsible for failing to comply with any of (i) through
(iv) above unless it had previously received the notification in the foregoing
sentence. The Sub-Adviser shall, for all purposes herein provided, be deemed to
be an independent contractor and, except as expressly provided or authorized
herein, shall have no authority to act for or represent the Adviser or the BDC
in any way or otherwise be deemed an agent of the Adviser or the
BDC.
(d) Records. The Sub-Adviser
shall keep and preserve for the period required by the 1940 Act any books and
records relevant to the provision of its investment advisory services to the BDC
and shall specifically maintain all books and records with respect to the BDC’s
portfolio transactions and shall render to the BDC’s Board such periodic and
special reports as the Board may reasonably request. The Sub-Adviser agrees that
all records that it maintains for the BDC are the property of the BDC and will
surrender promptly to the BDC any such records upon the BDC’s request, provided
that the Sub-Adviser may retain a copy of such records.
(e) Compliance Policies. The
Sub-Adviser has adopted and implemented written policies and procedures
reasonably designed to prevent violation of the Advisers Act by the Sub-Adviser
in accordance with Rule 206(4)-7 of the Advisers Act. The Sub-Adviser has
provided the BDC, and shall provide the BDC at such times in the future as the
BDC shall reasonably request, with a copy of such policies and
procedures.
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2.
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EXPENSES.
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The
Sub-Adviser assumes no obligation with respect to, and shall not be responsible
for, the expenses of the Adviser or the BDC. The Sub-Adviser shall, at
its sole expense, employ or associate itself with such persons as it believes to
be particularly fitted to assist it in the execution of its duties under this
Agreement, including without limitation, persons employed or otherwise retained
by the Sub-Adviser or made available to the Sub-Adviser by its members or
affiliates. In this
regard, the Adviser, on behalf of itself and the BDC, acknowledges that (i) the
Sub-Adviser’s wholly-owned subsidiary, Main Street Capital Partners, LLC
(“Partners”), employs all of the investment professionals of the Sub-Adviser who
will provide services to the Adviser and the BDC on behalf of the Sub-Adviser
hereunder and (ii) the members of the Sub-Adviser’s and Partners’ management
teams are the same individuals. The Adviser shall cause the
Sub-Adviser to be reimbursed by the BDC or the Adviser, as appropriate, for
expenses reasonably incurred by the Sub-Adviser at the request of or on behalf
of the BDC or the Adviser, to the same extent as such expenses would be
reimbursable to the Adviser pursuant to Sections 2(a) – (c)
of the Advisory Agreement had such expenses been incurred by the Adviser; subsequent
to the effectiveness thereof. All
proceeds from the reimbursement of Organization and Offering Expenses (as such
term is defined in the Advisory Agreement) shall be allocated (i) 50% to Adviser
and 50% to Sub-Adviser to the extent Sub-Adviser has incurred Organization and
Offering Expenses that it has not fully recovered, and otherwise (ii) 100% to
Adviser. For the avoidance of doubt, all reimbursable expenses other
than Organization and Offering Expenses incurred by Sub-Adviser shall be
reimbursed as incurred and are not subject to the allocation in the previous
sentence. The Sub-Adviser shall maintain and supply to the
BDC and the Adviser as they may reasonably request, records of all such
expenses.
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3.
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COMPENSATION.
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In consideration for the Sub-Adviser’s
services hereunder, the Adviser shall pay the Sub-Adviser fifty percent (50%) of
the fees (including without limitation the Base Management Fees and Incentive
Fees, as such terms are defined in the Advisory Agreement), payable to the
Adviser pursuant to Section 3 of the
Advisory Agreement (a copy of which is included as Exhibit
A to this Agreement and is incorporated by reference herein), payable
quarterly in arrears. The Adviser shall arrange for the fees payable to the
Sub-Adviser hereunder to be paid to the Sub-Adviser directly by the BDC on the
same day the BDC pays (or is obligated to pay) the Adviser its fees (including
without limitation the Base Management Fees and Incentive Fees, as such terms
are defined in the Advisory Agreement) under the Advisory Agreement. For the
avoidance of doubt, Adviser may not waive or in any way delay payment of any
fees payable to Adviser under the Advisory Agreement or Sub-Adviser under this
Agreement without the express written consent of the
Sub-Adviser.
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4.
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REPRESENTATIONS
AND WARRANTIES OF THE SUB-ADVISER.
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The Sub-Adviser represents and warrants
to the Adviser and the BDC as follows:
(a) The
Sub-Adviser shall be registered as an investment adviser under the Advisers Act
as of the date that the Registration Statement is declared effective and shall
maintain such registration.
(b) The
Sub-Adviser is a corporation duly organized and validly existing under the laws
of the State of Maryland with the power to own and possess its assets and carry
on its business as it is now being conducted.
(c) The
execution, delivery and performance by the Sub-Adviser of this Agreement are
within the Sub-Adviser’s powers and have been duly authorized by all necessary
action on the part of its board of directors and no action by or in respect of,
or filing with, any governmental body, agency or official is required on the
part of the Sub-Adviser for the execution, delivery and performance by the
Sub-Adviser of this Agreement, other than the filing of a Form ADV with the SEC
in connection with the Sub-Adviser’s registration as an investment adviser under
the Advisers Act (which Form ADV was filed by the Sub-Adviser with the SEC on
October 21, 2010), and the execution, delivery and performance by the
Sub-Adviser of this Agreement do not contravene or constitute a default under
(i) any provision of applicable law, rule or regulation, other than the
requirement that the Sub-Adviser be registered as an investment adviser under
the Advisers Act in connection with the performance of its obligations under
this Agreement, (ii) the Sub-Adviser’s governing instruments, or (iii) any
agreement, judgment, injunction, order, decree or other instrument binding upon
the Sub-Adviser.
(d) The
Form ADV of the Sub-Adviser previously provided to the Adviser is a true and
complete copy of the form as currently filed with the SEC and the information
contained therein is accurate and complete in all material respects and does not
omit to state any material fact necessary in order to make the statements made,
in light of the circumstances under which they were made, not misleading. The
Sub-Adviser will promptly provide the Adviser and the BDC with a complete copy
of all subsequent amendments to its Form ADV.
(e) The
Sub-Adviser will, on or prior to the date that the BDC commences investment
operations, adopt a written code of ethics complying with the requirements of
Rule 17j-1 under the 1940 Act and will provide the Adviser and the BDC with a
copy of that code, together with evidence of its adoption. Upon the request of
the Adviser or the BDC, a senior executive officer of the Sub-Adviser shall
certify, within 20 days of the end of each calendar quarter during which this
Agreement remains in effect, to the Adviser or the BDC that the Sub-Adviser has
complied with the requirements of Rule 17j-1 during the previous quarter and
that there have been no violations of the Sub-Adviser’s code of ethics or, if
such a violation has occurred, that appropriate action has been taken in
response to such violation. Upon written request of the Adviser or the BDC, the
Sub-Adviser shall permit representatives of the Adviser or the BDC to examine
the reports (or summaries of the reports) required to be made to the Sub-Adviser
by Rule 17j-1(c)(1) and other records evidencing enforcement of the code of
ethics.
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(f) The
Sub-Adviser shall comply with all requirements applicable to the investment
adviser of a business development company like the BDC under the Advisers Act
and the 1940 Act.
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5.
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REPRESENTATIONS
AND WARRANTIES OF THE ADVISER.
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The Adviser represents and warrants to
the Sub-Adviser and the BDC as follows:
(a) The
Adviser shall be registered as an investment adviser under the Advisers Act as
of the date the Registration Statement is declared effective and shall maintain
such registration.
(b) The
Adviser is a limited liability company duly organized and validly existing under
the laws of the State of Delaware with the power to own and possess its assets
and carry on its business as it is now being conducted.
(c) The
execution, delivery and performance by the Adviser of this Agreement are within
the Adviser’s powers and have been duly authorized by all necessary action and
no action by or in respect of, or filing with, any governmental body, agency or
official is required on the part of the Adviser for the execution, delivery and
performance by the Adviser of this Agreement, other than the filing of a Form
ADV with the SEC in connection with the Adviser’s registration as an investment
adviser under the Advisers Act (which Form ADV will be filed by the Adviser with
the SEC no later than thirty days after the execution of this Agreement) and the
execution, delivery and performance by the Adviser of this Agreement do not
contravene or constitute a default under (i) any provision of applicable law,
rule or regulation, other than the requirement that the Adviser be registered as
an investment adviser under the Advisers Act in connection with its provision of
investment advisory services to the BDC, (ii) the Adviser’s governing
instruments, or (iii) any agreement, judgment, injunction, order, decree or
other instrument binding upon the Adviser.
(d) The
Form ADV of the Adviser previously provided to the Sub-Adviser is a true and
complete copy of the form as currently filed with the SEC and the information
contained therein is accurate and complete in all material respects and does not
omit to state any material fact necessary in order to make the statements made,
in light of the circumstances under which they were made, not
misleading.
(e) The
Adviser and the BDC have duly entered into the Advisory Agreement pursuant to
which the BDC authorized the Adviser to enter into this Agreement.
(f) The
Adviser shall comply with all requirements applicable to the investment adviser
of a business development company like the BDC under the Advisers Act and the
1940 Act.
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6.
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SURVIVAL
OF REPRESENTATIONS AND WARRANTIES; DUTY TO UPDATE
INFORMATION.
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All representations and warranties made
by the Sub-Adviser and the Adviser pursuant to Sections 4 and 5,
respectively, shall survive for the duration of this Agreement and the parties
hereto shall promptly notify each other in writing upon becoming aware that any
of the foregoing representations and warranties are no longer true.
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7.
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LIABILITY
AND INDEMNIFICATION.
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(a) The
duties of the Sub-Adviser shall be confined to those expressly set forth herein.
The Sub-Adviser shall not be liable for any loss arising out of any instrument
hereunder, except a loss resulting from willful misfeasance, bad faith or gross
negligence in the performance of its duties, or by reason of reckless disregard
of its obligations and duties hereunder, except as may otherwise be provided
under provisions of applicable state law which cannot be waived or modified
hereby. (As used in this Section 7, the term
“Sub-Adviser” shall include, without limitation, its directors, officers,
employees and other agents of the Sub-Adviser as well as that entity
itself).
(b) The
Sub-Adviser shall indemnify the Adviser and the BDC, and their respective
affiliates and controlling persons, for any liability and expenses, including
reasonable attorneys’ fees, which the Adviser, the BDC or their respective
affiliates and controlling persons may sustain as a result of the Sub-Adviser’s
willful misfeasance, bad faith, gross negligence, reckless disregard of its
duties hereunder or violation of applicable law, including, without limitation,
the federal and state securities laws.
(c) The
Adviser shall indemnify the Sub-Adviser, its affiliates and its controlling
persons, for any liability and expenses, including reasonable attorneys’ fees,
howsoever arising from, or in connection with, the Sub-Adviser’s performance of
its obligations under this Agreement or the Adviser’s breach of the terms,
representations and warranties herein; provided, however, that the Sub-Adviser
shall not be indemnified for any liability or expenses that may be sustained as
a result of the Sub-Adviser’s willful misfeasance, bad faith, or gross
negligence in the performance of the Sub-Adviser’s duties or by reason of the
reckless disregard of the Sub-Adviser’s duties and obligations under this
Agreement, or violation of applicable law, including, without limitation,
federal and state securities laws.
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8.
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DURATION
AND TERMINATION OF AGREEMENT.
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(a) This
Agreement shall become effective as of the date that the BDC meets the minimum
offering requirement, as such term is defined in the prospectus contained in the
Registration Statement; provided, however, that the obligations of the Adviser
and the Sub-Adviser contained in Section 2 hereof with respect to expenses,
including the reimbursement thereof, shall be deemed to have become effective
and binding on the Adviser and the Sub-Adviser as of the date of the
execution of the Original Agreement by them. This Agreement shall
remain in effect for two years, and thereafter shall continue automatically for
successive annual periods, provided that such continuance is specifically
approved at least annually by (i) the vote of the Board, or by the vote of a
majority of the outstanding voting securities of the BDC and (ii) the vote of a
majority of the BDC’s directors who are not parties to this Agreement or
“interested persons” (as such term is defined in Section 2(a)(19) of the 0000
Xxx) of any such party, in accordance with the requirements of the 1940
Act.
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(b) This
Agreement may be terminated at any time, without the payment of any penalty, (i)
by the Adviser upon 60 days’ written notice to the Sub-Adviser, but only if
authorized either (A) by the vote of a majority of the outstanding voting
securities of the BDC, as defined in Section 2(a)(42) of the 1940 Act (a “Majority
Vote”), or (B) by the vote of a majority of the BDC’s independent
directors, (ii) by the Sub-Adviser upon 60 days’ written notice to the BDC and
the Adviser, or (iii) by the vote of a majority of the independent
directors of the BDC or by a Majority Vote by the BDC’s stockholders. This
Agreement shall automatically terminate (i) in the event of its “assignment”
(within the meaning of Rule 2a-6 under the 0000 Xxx) or (ii) the termination of
the Advisory Agreement. This Agreement may not be assigned without
the prior consent of the BDC, except that the Sub-Adviser may assign it to an
affiliate so long as it does not constitute an “assignment” within the meaning
of Rule 2a-6 under the 1940 Act. For
avoidance of doubt, the Adviser, on behalf of itself and the BDC, and the
Sub-Adviser agree that the transfer of this Agreement to Partners will not
constitute an “assignment” within the meaning of Rule 2a-6 under the 1940
Act. The provisions of Section 7 of this
Agreement shall remain in full force and effect, and the Sub-Adviser shall
remain entitled to the benefits thereof, notwithstanding any termination of this
Agreement.
(c) Notwithstanding
any termination of this Agreement, the Sub-Adviser shall be entitled to receive
all amounts payable to it and not yet paid pursuant to Section 3
hereof.
(d) Pursuant
to Section 9(b)
of the Advisory Agreement, if this Agreement shall (i) expire by its terms
without renewal pursuant to the last sentence of Section 8(a) of this
Agreement or (ii) be terminated by the Adviser or the BDC pursuant to Section 8(b) of this
Agreement, the Advisory Agreement shall terminate simultaneously with the
termination of this Agreement, and the BDC shall not, for a period of three (3)
years following such termination, engage the Sub-Adviser or its affiliates or
any of their successors or any officers, directors or employees of the
Sub-Adviser or its affiliates or their successors as an adviser or sub-adviser
to the BDC without the prior written consent of the
Adviser. Notwithstanding the foregoing, or anything in this Agreement
or the Advisory Agreement to the contrary, if the Advisory Agreement is
terminated by the Adviser or the BDC for cause (as defined below), then the BDC
may enter into a new advisory agreement with the Sub-Adviser or an affiliate
thereof without prior consent of the Adviser. For purposes of this
Agreement, for cause shall mean the occurrence of one or more of the following
events:
(i)
the Adviser shall have materially breached the Advisory Agreement, as determined
by the independent directors of the BDC, provided, however , that the breaching
party shall have 30 calendar days after the receipt of notice of such breach
from the other party to cure such breach;
(ii) the
Adviser is subject to an allegation that it has committed any fraud, criminal
conduct, gross negligence or willful misconduct in any action or failure to act
undertaken by the Adviser pertaining to or having a material detrimental effect
upon the ability of the Adviser to perform its respective duties under the
Advisory Agreement and the independent directors of the Board shall have
determined, after providing the Adviser with an opportunity for a hearing and to
cure any damage, that such allegation shall have had a material adverse effect
on the BDC that can only be remedied by termination of the Advisory Agreement,
or, in any event, if and when a court or regulatory authority of competent
jurisdiction shall have returned
a final non-appealable order or ruling that the Adviser is guilty of or liable
with respect to such conduct;
(iii) the
Adviser (1) commences a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, (2) consents to the
entry of an order for relief in an involuntary case under any such law, (3)
consents to the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) for any
substantial part of its property, or (4) makes any general assignment for the
benefit of creditors under applicable state law;
(iv) if:
(1) an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect has been commenced against the Adviser,
and such case has not been dismissed within 60 days after the commencement
thereof; or (2) a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) has been appointed for the Adviser or has
taken possession of the Adviser’s or any substantial part of its property, and
such appointment has not been rescinded or such possession has not been
relinquished within 60 days after the occurrence thereof; or
(v) if
at any time within five years after the Effective Date both Xxxxxxxx Xxxxxxxx
and Xxxxxxx X. Xxxxxx cease to be actively involved in the management of the
Adviser unless the parties agree that acceptable replacements are in place or
can timely be put in place.
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9.
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LIMITATIONS
ON THE EMPLOYMENT OF THE
SUB-ADVISER.
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The services of the Sub-Adviser to the
BDC are not exclusive, and the Sub-Adviser may engage in any other business or
render similar or different services to others including, without limitation,
the direct or indirect sponsorship or management of other investment based
accounts or commingled pools of capital, however structured, having investment
objectives similar to those of the BDC, so long as its services to the BDC
hereunder are not impaired thereby, and nothing in this Agreement shall limit or
restrict the right of any manager, partner, officer or employee of the
Sub-Adviser to engage in any other business or to devote his or her time and
attention in part to any other business, whether of a similar or dissimilar
nature, or to receive any fees or compensation in connection therewith
(including fees for serving as a director of, or providing consulting services
to, one or more of the BDC’s portfolio companies, subject to applicable law).
The Sub-Adviser assumes no responsibility under this Agreement other than to
render the services called for hereunder. It is understood that directors,
officers, employees and stockholders of the BDC are or may become interested in
the Sub-Adviser and its affiliates, as directors, officers, employees, partners,
stockholders, members, managers or otherwise, and that the Sub-Adviser and
directors, officers, employees, partners, stockholders, members and managers of
the Sub-Adviser and its affiliates are or may become similarly interested in the
BDC as stockholders or otherwise.
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10.
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EXCLUSIVITY.
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During the time period that the BDC is
engaged in a primary offering of its securities in connection with the
Registration Statement or a follow on offering of its securities in connection
with a new registration statement, neither the Sub-Adviser nor its affiliates
will undertake to market or distribute the securities of, or advise, a
non-traded business development corporation investing in the debt or equity of
middle market companies with annual revenues between $10 million and $1
billion.
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11.
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ADVISORY
AGREEMENT AND DEALINGS WITH THE
BDC.
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Adviser
agrees to inform and make Sub-Adviser a party to all negotiations between
Adviser and the BDC regarding any proposed amendment of the Advisory Agreement.
No amendment to the Advisory Agreement will be agreed upon or permitted if such
amendment would impact the rights or obligations of the Sub-Adviser without the
Sub-Adviser’s consent and signature.
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12.
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BOARD
OBSERVATION RIGHTS
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Sub-Adviser
shall have the right to designate one (1) representative (the “Observer”)
to attend all meetings of the Board (and all committees thereof) of the BDC as a
non-voting observer. The BDC shall (i) give the Observer notice, at
the same time as furnished to the directors, of all meetings of the Board (or
any committee thereof) of the BDC, (ii) provide to the Observer all notices,
documents and information furnished to the directors whether at or in
anticipation of a meeting, an action by written consents or otherwise, at the
same time as furnished to the directors, (iii) notify the Observer by telephone
of, and permit the Observer to attend by telephone, emergency meetings of the
Board (and all committees thereof) of the BDC, and (iv) provide the Observer
copies of the minutes of all such meetings at the time such minutes are
furnished to the directors. The Observer will be reimbursed for its
reasonable out of pocket expenses incurred in connection with its rights under
this Section
12.
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13.
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NOTICES.
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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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14.
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AMENDMENTS.
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This Agreement may be amended by mutual
consent of the parties, subject to the requirements of applicable
law.
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15.
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ENTIRE
AGREEMENT; GOVERNING LAW.
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This
Agreement contains the entire agreement of the parties and supersedes all prior
agreements, understandings and arrangements with respect to the subject matter
hereof. Notwithstanding the place where this Agreement may be executed by any of
the parties hereto, this Agreement shall be construed in accordance with the
laws of the State of Delaware. For so long as the BDC is regulated as a BDC
under the 1940 Act, this Agreement shall also be construed in accordance with
the applicable provisions of the 1940 Act. In such case, to the extent the
applicable laws of the State of Delaware, or any of the provisions herein,
conflict with the provisions of the 1940 Act, the latter shall
control.
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16.
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SEVERABILITY.
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If any provision of this Agreement
shall be held or made invalid by a court decision, statute, rule or otherwise,
the remainder of this Agreement shall not be affected thereby.
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WITNESS WHEREOF, the parties
hereto have caused this Agreement to be duly executed on the date above
written.
BDCA
ADVISER, LLC
By: /s/ Xxxxxxxx X.
Xxxxxxxx
Name:
Xxxxxxxx X. Xxxxxxxx
Title: Chairman
and Chief Executive Officer
MAIN
STREET CAPITAL CORPORATION
By: /s/ Xxxx
X. Xxxxxxx
Name: Xxxx
X. Xxxxxxx
Title: President
and Chief Financial Officer
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EXHIBIT
A
Advisory
Agreement
10
