Exhibit 10.11





 


AMENDED AND RESTATED CONDITIONAL FEE
WAIVER AGREEMENT


 


This Amended and Restated
Conditional Fee Waiver Agreement (this “Agreement”) is made as of March 26, 2013 by and among HMS Income Fund,
Inc. (the “Company”), HMS Adviser LP (the “Adviser”), Main Street Capital Corporation (“Main
Street”) and Main Street Capital Partners, LLC (“Main Street Capital Partners” and, together with
Main Street, the “Sub-Adviser”). The Adviser and the Sub-Adviser are collectively referred to herein as the
“Advisers.”


 


WHEREAS, the
Company maintains on file with the U.S. Securities and Exchange Commission (the “SEC”) an effective registration
statement on Form N-2, as amended (File No. 333-178548) covering the continuous offering and sale of the Company’s common
stock pursuant to the Securities Act of 1933, as amended (the “Registration Statement”);


 


WHEREAS, the
Company and the Adviser have entered into an Investment Advisory and Administrative Services Agreement dated as of May 31, 2012,
as amended (the “Advisory Agreement”), and the Company, the Adviser and the Sub-Adviser have entered into an
Investment Sub-Advisory Agreement dated as of May 31, 2012 (the “Sub-Advisory Agreement” and together with the
Advisory Agreement, the “Advisory Agreements”);


 


WHEREAS, on
May 31, 2012, the Company, the Adviser and Main Street Capital Partners entered into that certain Conditional Fee Waiver Agreement
(the “Original Agreement”) pursuant to which the Adviser and Main Street Partners agreed to conditionally waive
certain fees under the Advisory Agreements to the extent that some or all of the distributions paid to the Company’s stockholders
are estimated to represent a return of capital for purposes of U.S. federal income tax;


 


WHEREAS, Main
Street is currently serving as the investment sub-adviser to the Company pursuant to the Sub-Advisory Agreement; and


 


WHEREAS, the
Company and the Advisers now desire to amend and restate the Original Agreement in the manner stated herein primarily to reflect
the extension of the term of the Original Agreement through September 30, 2013, as set forth herein.


 


NOW, THEREFORE,
in consideration of the premises and the mutual agreements herein contained, and for other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), the parties hereto agree as follows:


 


		1.	Waived Fees.  During the period beginning at the time that the Company’s
Registration Statement is declared effective by the SEC and continuing through September 30, 2013 (the “Fee Waiver Period”),
the Advisers hereby agree to waive the Base Management Fee and/or Incentive Fee, proportionally, as each term is defined and further
described in the Advisory Agreement, due and payable by the Company to the Advisers in the event the Company estimates that a distribution
declared and payable to the Company’s stockholders during the Fee Waiver Period represents, or would represent when paid,
a return of capital for purposes of U.S. federal income tax. The amounts waived pursuant to the preceding sentence shall be referred
to herein as the “Waived Fees.” The Company shall promptly notify the Advisers of the amount of any Waived Fees
and shall deduct the Waived Fees from the amount, if any, otherwise due and payable by the Company to the Adviser pursuant to the
terms of the Advisory Agreement (and therefrom payable by the Adviser to the Sub-Adviser pursuant to the Sub-Advisory Agreement)
for the applicable month. If the amount owed by the Company to the Adviser pursuant to the Advisory Agreement exceeds the Waived
Fees, the Company shall pay any such excess amount to the Adviser in accordance with the terms of the Advisory Agreement (and therefrom
payable by the Adviser to the Sub-Adviser pursuant to the Sub-Advisory Agreement).



 






    	 



    	 



    










 


		2.	Conditional Repayment of Waived Fees. Subject to the approval of the Company’s
board of directors, the Company hereby agrees to reimburse the Advisers proportionately for any Waived Fees following any quarter
in which the Company’s Net Increase in Net Assets (as hereinafter defined) exceeds the amount of the Company’s cumulative
distributions paid to the Company’s stockholders in such calendar quarter (the “Excess Net Increase Net Assets”).
If payable, the amount of the reimbursement payment for any calendar quarter shall equal the lesser of (i) the Excess Net Increase
in Net Assets in such calendar quarter and (ii) the aggregate amount of all Waived Fees made by the Advisers to the Company within
three years prior to the last business day of such calendar quarter that have not been previously reimbursed to the Company (the
“Reimbursements Payment”). If payable, the Reimbursement Payment for any calendar quarter shall be paid by the
Company no later than forty-five days after the end of such calendar quarter. The repayment of all such Waived Fees is to be made
within a period not to exceed three (3) years from the end of the fiscal year in which the waiver of such Waived Fees is made.
As used herein, “Net Increase in Net Assets” shall mean the sum of (i) the Company’s tax basis net investment
income, (ii) taxable net capital gains/losses (whether short-term or long-term), and (iii) dividends and other distributions paid
to the Company on account of investments in portfolio companies (to the extent such amounts are not included in clauses (i) and
(ii) above). For the avoidance of doubt, operating expenses deducted in calculating tax basis net investment income does not include
offering expenses as defined in the Advisory Agreement or any accrued Incentive Fee related to net unrealized appreciation.



 


		3.	Term and Termination of Agreement. This Agreement shall become effective immediately
upon the date hereof. Once effective, this Agreement shall remain in effect unless otherwise terminated pursuant to Section 3(a)
hereof.



 


		a.	Termination of Agreement. This Agreement may be terminated by the Advisers upon written
notice to the Company, except that once effective, the Advisers may not terminate their obligations under Section 1 hereof. This
Agreement shall automatically terminate in the event of (i) the termination by the Company of the Advisory Agreements or (ii) the
dissolution or liquidation of the Company. Notwithstanding any provision to the contrary, if this Agreement terminates automatically
pursuant to clause (i) of this Section 3(a), the Company agrees to make a repayment to the Advisers in an amount equal to all Waived
Fees not previously repaid in accordance with Section 2 hereof. Such repayment shall be made to the Adviser (and shall be repaid
by the Adviser to the Sub-Adviser) not later than thirty (30) days after the termination of this Agreement.



 


		4.	Miscellaneous.



 


		a.	Headings. The captions of this Agreement are included for convenience only and in no way
define or limit any of the provisions hereof or otherwise affect their construction or effect.



 


		b.	Interpretation. This Agreement shall be governed by and construed in accordance with the
laws of the State of Texas (without reference to its conflicts of laws provisions) and the applicable provisions of the Investment
Company Act of 1940, as amended (the “1940 Act”) and the Investment Advisers Act of 1940, as amended (the “Advisers
Act”). To the extent that the applicable laws of the State of Texas or any of the provisions herein, conflict with the
applicable provisions of the 1940 Act or the Advisers Act, the latter shall control. Further, nothing herein contained shall be
deemed to require the Company to take any action contrary to the Company’s Amended and Restated Articles of Incorporation
or the Amended and Restated By-Laws, as each may be amended or restated, or to relieve or deprive the Company’s board of
directors of its responsibility for and control of the conduct of the affairs of the Company.



 


		c.	Severability. 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 and, to this extent, the provisions
of this Agreement shall be deemed to be severable.



 


		d.	Entire Agreement. This Agreement embodies the entire agreement and understanding of the
parties hereto, and supersedes all prior agreements or understandings (whether written or oral), with respect to the subject matter
hereof.



 






    	 



    	 



    




 


		e.	Amendments and Counterparts. This Agreement may only be amended by mutual written consent
of the parties. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original,
and all such counterparts shall, together, constitute only one instrument.



 


 


[Signature Page to Follow]


 






    	 



    	 



    




 





[Signature Page to Conditional Fee Waiver
Agreement]


 


IN WITNESS WHEREOF,
the parties have caused this Conditional Fee Waiver Agreement to be signed by their respective officers thereunto duly authorized,
as of the day and year first above written.


 


 


	 	COMPANY:	 
	 	 	 	 
	 	HMS INCOME FUND, INC.	 
	 	 	 	 
	 	By: 	/s/ Ryan T. Sims	 
	 	Name:	Ryan T. Sims	 
	 	Title:	Chief Financial Officer and Secretary	 


 





	 	ADVISER:
	 	 
	 	HMS ADVISER LP


 





	 	 	By:	HMS ADVISER GP, LLC, its general partner


 





	 	 	 	By: 	/s/ Ryan T. Sims	 
	 	 	 	Name:	Ryan T. Sims	 
	 	 	 	Title:	Chief Financial Officer	 


 


	 	MAIN STREET:	 
	 	 	 	 
	 	MAIN STREET CAPITAL CORPORATION	 
	 	 	 	 
	 	By:	/s/ Jason B. Beauvais	 
	 	Name:	Jason B. Beauvais	 
	 	Title:	Senior Vice President  	 
	 	 	 	 
		MAIN STREET CAPITAL PARTNERS:	 
	 	 	 	 
	 	MAIN STREET CAPITAL PARTNERS, LLC	 
	 	 	 	 
	 	By:	/s/ Jason B. Beauvais	 
	 	Name:	Jason B. Beauvais	 
	 	Title:	Senior Vice President