THIRD AMENDMENT TO LOAN FUNDING AND SERVICING AGREEMENT (Kohlberg Capital Funding LLC I)
Exhibit 10.15
EXECUTION COPY
THIRD AMENDMENT TO LOAN FUNDING AND SERVICING AGREEMENT
(Kohlberg Capital Funding LLC I)
THIS THIRD AMENDMENT TO LOAN FUNDING AND SERVICING AGREEMENT, dated as of November 21, 2007 (this “Amendment”), is entered into by and among KOHLBERG CAPITAL FUNDING LLC I, as the borrower (in such capacity, the “Borrower”), KOHLBERG CAPITAL CORPORATION, as the servicer (in such capacity, the “Servicer”), each of the conduit lenders and institutional lenders from time to time a party hereto (each, a “Lender” and collectively, the “Lenders”), each of the lender agents from time to time a party hereto (each, a “Lender Agent” and collectively, the “Lender Agents”), BMO CAPITAL MARKETS CORP., as the agent (in such capacity, the “Agent”), U.S. BANK NATIONAL ASSOCIATION, as the trustee (in such capacity, the “Trustee”) and LYON FINANCIAL SERVICES, INC. (d/b/a U.S. Bank Portfolio Services), as the backup servicer (in such capacity, the “Backup Servicer”). Capitalized terms used and not otherwise defined herein shall have the meanings given to such terms in the Agreement (as defined below).
R E C I T A L S
WHEREAS, the parties hereto entered into that certain Loan Funding and Servicing Agreement, dated as of February 14, 2007 (such agreement as amended, modified, supplemented, waived or restated from time to time, the “Agreement”);
WHEREAS, the parties hereto desire to amend the Agreement in certain respects as provided herein;
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. AMENDMENTS AND AGREEMENTS.
(a) Section 9.1(m) of the Agreement is hereby amended by deleting the word “less” and replacing it with the word “greater”.
(b) The parties hereto agree that as of the date hereof the above-referenced amendment to Section 9.1(m) shall be deemed to be in effect for all purposes under the Agreement as of February 14, 2007.
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, the “Loan Funding and Servicing Agreement,” “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 constitute a novation of the Agreement, but shall constitute an amendment thereof. 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 Servicer represent and warrant 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 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 by or against it;
(iv) this Amendment has been duly executed and delivered by it;
(v) this Amendment 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;
(vi) it is not in default under the Agreement; and
(vii) there is no Termination Event, Unmatured Termination Event, Servicer Termination Event or Unmatured Servicer Termination Event.
SECTION 4. CONDITIONS TO EFFECTIVENESS.
The effectiveness of this Amendment is conditioned upon (i) payment of the outstanding fees and disbursements of Dechert LLP, as counsel to the Agent, and (ii) delivery of executed signature pages by all parties hereto to the Agent.
SECTION 5. MISCELLANEOUS.
(a) This Amendment may be executed in any number of counterparts (including by facsimile), 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.
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(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, 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 represents the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements between the parties. There are no unwritten oral agreements between the parties.
(g) 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 LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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 date first above written.
| THE BORROWER: | KOHLBERG CAPITAL FUNDING LLC I | |||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Chief Financial Officer | |||
| Kohlberg Capital Funding LLC I | ||||
| x/x Xxxxxxxx Xxxxxxx Xxxxxxxxxxx | ||||
| 000 Xxxxxxx Xxxxxx, 0xx Xxxxx | ||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||
| Attention: Xxxx X. Xxxxxxx | ||||
| Facsimile: (000) 000-0000 | ||||
| Telephone: (000) 000-0000 | ||||
| THE SERVICER: | KOHLBERG CAPITAL CORPORATION | |||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Chief Financial Officer | |||
| Kohlberg Capital Corporation | ||||
| 000 Xxxxxxx Xxxxxx, 0 Xxxxx | ||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||
| Attention: Xxxx X. Xxxxxxx | ||||
| Facsimile: (000) 000-0000 | ||||
| Telephone: (000) 000-0000 | ||||
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
Third Amendment to LFSA
| LENDER: | RIVERSIDE FUNDING LLC | |||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President | |||
| ACKNOWLEDGED: | DEUTSCHE BANK AG, NEW YORK BRANCH, as Lender Agent for Riverside Funding LLC | |||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Director | |||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President | |||
| Riverside Funding LLC | ||||
| c/o Global Securitization Services, LLC | ||||
| 000 Xxxxx Xxxxxx Xxxx, Xxxxx 000 | ||||
| Xxxxxxxx, XX 00000 | ||||
| Attention: Xxxxxx Xxxxx | ||||
| Facsimile No. (000) 000-0000 | ||||
| Telephone No. (000) 000-0000 | ||||
| with a copy to: | ||||
| Deutsche Bank Securities Inc. | ||||
| 00 Xxxx Xxxxxx, 00xx Xxxxx | ||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||
| Attention: Securitized Products Group | ||||
| Facsimile: (000) 000-0000 | ||||
| Telephone: (000) 000-0000 | ||||
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
Third Amendment to LFSA
| LENDER: | FAIRWAY FINANCE COMPANY, LLC | |||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
| Fairway Finance Company, LLC | ||||
| c/o Lord Securities Corporation | ||||
| 00 Xxxx Xxxxxx, 00xx Xxxxx | ||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||
| Facsimile No. (000) 000-0000 | ||||
| Telephone No. (000) 000-0000 | ||||
| with a copy to: | ||||
| c/o BMO Capital Markets Corp. | ||||
| 000 Xxxxx XxXxxxx Xxxxxx | ||||
| 00xx Xxxxx Xxxx | ||||
| Xxxxxxx, Xxxxxxxx 00000 | ||||
| Attention: Conduit Management Team | ||||
| Facsimile: (000) 000-0000 | ||||
| Telephone: (000) 000-0000 | ||||
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
Third Amendment to LFSA
| THE AGENT: | BMO CAPITAL MARKETS CORP. | |||
| By: | /s/ Xxxxx Xxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxx | |||
| Title: | Managing Director | |||
| BMO Capital Markets Corp. | ||||
| 000 Xxxxx XxXxxxx Xxxxxx | ||||
| 00xx Xxxxx Xxxx | ||||
| Xxxxxxx, Xxxxxxxx 00000 | ||||
| Attention: Conduit Management Team | ||||
| Facsimile: (000) 000-0000 | ||||
| Telephone: (000) 000-0000 | ||||
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
Third Amendment to LFSA
| THE TRUSTEE: | U.S. BANK, NATIONAL ASSOCIATION | |||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Assistant Vice President | |||
| U.S. Bank, National Association | ||||
| Corporate Trust Services – CDO Xxxx | ||||
| Xxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx | ||||
| Xxxxxx, Xxxxxxxxxxxxx | ||||
| Reference: Kohlberg Capital Funding LLC I | ||||
| Attention: Xxxxx Xxxxxx | ||||
| Facsimile: (000) 000-0000 | ||||
| THE BACKUP SERVICER | LYON FINANCIAL SERVICES, INC., d/b/a U.S. Bank Portfolio Services | |||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Senior Vice President | |||
| Lyon Financial Services, Inc. | ||||
| d/b/a U.S. Bank Portfolio Services | ||||
| 0000 Xxxxxx, Xxxxx 000 | ||||
| Xxxxxxxx, Xxxxxxxxx 00000 | ||||
| Attention: Xxx Xxxxxxx | ||||
| Reference: Kohlberg Capital Funding LLC I | ||||
Third Amendment to LFSA
