FS Energy and Power Fund 8-K


 


Exhibit 10.1


 


 





EXECUTION VERSION


FIRST AMENDMENT TO
LOAN AND SERVICING AGREEMENT, dated as of October 13, 2016 (this “Amendment”), among WAYNE FUNDING LLC, a Delaware
limited liability company (the “Borrower”), WELLS FARGO SECURITIES, LLC, as administrative agent (together with
its successors and assigns in such capacity, the “Administrative Agent”), WELLS FARGO BANK, NATIONAL ASSOCIATION,
as institutional lender (together with its successors and assigns in such capacity, the “Lender”) and WELLS
FARGO BANK, NATIONAL ASSOCIATION, as collateral agent (together with its successors and assigns in such capacity, the “Collateral
Agent”), account bank (together with its successors and assigns in such capacity, the “Account Bank”)
and collateral custodian (together with its successors and assigns in such capacity, the “Collateral Custodian”).


WHEREAS, the Borrower,
the Lender, the Administrative Agent, the Collateral Custodian, the Collateral Agent and the Account Bank and each of the lenders
and lender agents from time to time party thereto are party to the Loan and Servicing Agreement, dated as of September 9, 2014
(as amended, modified, waived, supplemented, restated or replaced from time to time, the “Loan and Servicing Agreement”),
providing, among other things, for the making and the administration of the Advances by the lenders to the Borrower;


WHEREAS, the Borrower,
the Lender and the Administrative Agent are party to the Fee Letter, dated as of September 9, 2014 (as amended, modified, waived,
supplemented, restated or replaced from time to time, the “Fee Letter”);


WHEREAS, the Borrower
delivered a Notice of Reduction pursuant to Section 2.17(b) of the Loan and Servicing Agreement that resulted in the reduction
of the Maximum Facility Amount from $200,000,000 to $125,000,000 effective as of February 24, 2016; and


WHEREAS, the Borrower,
the Lender, the Administrative Agent, the Collateral Custodian, the Collateral Agent and the Account Bank desire to amend the Loan
and Servicing Agreement, in accordance with Section 12.01 of the Loan and Servicing Agreement, and the Borrower, the Lender and
the Administrative Agent wish to amend the Fee Letter, in each case, subject to the terms and conditions set forth herein.


NOW THEREFORE, in consideration
of the foregoing premises and the mutual agreements contained herein, and for 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:


ARTICLE I




 


Definitions


 





SECTION 1.1. 


Defined Terms.
Capitalized terms used herein but not defined shall have the respective meanings given to such terms in the Loan and Servicing
Agreement.







    	 



    	 



    

 


ARTICLE II



Amendments



SECTION 2.1. 


As of the date of
this Amendment, the Loan and Servicing Agreement is hereby amended as follows:


(a)




by deleting “$200,000,000”
on the cover page of the Loan and Servicing Agreement and inserting “$60,000,000” in lieu thereof;


(b)




by deleting clause
(b) in the definition of “Eligible Loan” in its entirety and inserting the following in lieu thereof:


“after giving
effect to such Loan as an Eligible Loan, as of the related Cut-Off Date, (x) if such Cut-Off Date occurred prior to October 13,
2016, the aggregate Outstanding Balance of all Eligible Loans made to the applicable Obligor is not greater than $17,500,000; provided
that the aggregate Outstanding Balance of all Eligible Loans made to up to three (3) Obligors may be up to $25,000,000 for each
such Obligor; and (y) if such Cut-Off Date occurred on or after October 13, 2016, the aggregate Outstanding Balance of all Eligible
Loans made to the applicable Obligor is not greater than 10% of the Maximum Facility Amount as of the related Cut-Off Date; provided,
further, that, for each of clauses (x) and (y), only the portion of the Loans in excess of this threshold will be deemed
to have not satisfied this clause (b);”


(c)


 by deleting
the last sentence in the definition of “Maximum Facility Amount” in its entirety and inserting the following in lieu
thereof:


“As of October
13, 2016, the Maximum Facility Amount is $60,000,000.”


(d)


 by deleting
“September 9, 2017” in the definition of “Reinvestment Period” and inserting “March 31, 2017”
in lieu thereof;


(e)


 by deleting
“September 9, 2019” in the definition of “Stated Maturity Date” and inserting “September 9, 2018”
in lieu thereof; and


(f)


 by deleting
“$200,000,000” in Annex B as the Commitment of Wells Fargo Bank, National Association and inserting “$60,000,000”
in lieu thereof.


SECTION 2.2. 


 As of the
date of this Amendment, the definition of “Non-Usage Fee Rate” in the Fee Letter is hereby amended by inserting the
following proviso at the end of such definition:


“; provided
that, notwithstanding the foregoing sentence or anything to the contrary set forth herein or in the Loan and Servicing Agreement,
from and after October 13, 2016, the Non-Usage Fee Rate, shall be 0.00%”.


 




    	 



    	 



    




ARTICLE III



Representations
and Warranties


  


SECTION 3.1. 


The Borrower hereby
represents and warrants to the Lender that, as of the date first written above, (i) no Event of Default has occurred and is continuing
and (ii) the representations and warranties of the Borrower contained in the Loan and Servicing Agreement are true and correct
in all material respects on and as of such day (other than any representation and warranty that is made as of a specific date).


ARTICLE IV



Conditions
Precedent


  


SECTION 4.1.


This Amendment shall
become effective upon the satisfaction of the following conditions:


(a)


the execution
and delivery of this Amendment by the Borrower, the Administrative Agent, the Lender, the Collateral Custodian, the Collateral
Agent and the Account Bank; and


(b)


the Administrative
Agent’s receipt of (i) a good standing certificate for the Borrower issued by the applicable office body of its jurisdiction
of organization and (ii) a copy of the resolutions of the board of directors of the Borrower approving this Amendment and the transactions
contemplated hereby, certified by its secretary or assistant secretary or other authorized officer.


ARTICLE V



Miscellaneous


 





SECTION 5.1. 


Governing Law.
THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


SECTION 5.2. 


Severability Clause.
In case any provision in this Amendment shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality,
and enforceability of the remaining provisions or obligations or of such provisions or obligations in any jurisdiction shall not
in any way be affected or impaired thereby.


SECTION 5.3. 


Ratification.
Except as expressly amended hereby, the Loan and Servicing Agreement is in all respects ratified and confirmed and all the terms,
conditions and provisions thereof shall remain in full force and effect. This Amendment shall form a part of the Loan and Servicing
Agreement for all purposes.


 




    	 



    	 



    

 


SECTION 5.4. 


Counterparts.
The parties hereto may sign one or more copies of this Amendment in counterparts, all of which together shall constitute one and
the same agreement. Delivery of an executed signature page of this Amendment by facsimile or email transmission shall be effective
as delivery of a manually executed counterpart hereof.


SECTION 5.5. 


Headings.
The headings of the Articles and Sections in this Amendment are for convenience of reference only and shall not be deemed to alter
or affect the meaning or interpretation of any provisions hereof.


  


[Signature Pages Follow]


 




    	 



    	 



    

 


IN WITNESS WHEREOF,
the parties hereto have caused this Amendment to be duly executed as of the date first written above.


	 	 WAYNE FUNDING LLC,
	 	as Borrower
	 	 
	 	 
	 	By:	/s/ Gerald F. Stahlecker
	 	 	Name: Gerald F. Stahlecker
	 	 	Title: Executive Vice President




 


 




    	 



    	 



    







	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,
	 	as Institutional Lender
	 	 	 
	 	 	 
	 	By:	/s/ Mike Romanzo
	 	 	Name:  Mike Romanzo
	 	 	Title:    Managing Director












 




    	 



    	 



    

 

	 	WELLS FARGO SECURITIES, LLC,
	 	as the Administrative Agent
	 	 	 
	 	 	 
	 	By:	/s/ Mike Romanzo
	 	 	Name:  Mike Romanzo
	 	 	Title:    Managing Director













    	 



    	 



    

 

	 	WELLS FARGO BANK, NATIONAL
ASSOCIATION,
	 	as the Collateral Custodian
	 	 	 
	 	 	 
	 	By:	/s/ Mike Romanzo
	 	 	Name:  Mike Romanzo
	 	 	Title:    Managing Director


 







    	 



    	 



    

 

	 	WELLS FARGO BANK, NATIONAL
ASSOCIATION,
	 	as the Collateral Agent
	 	 	 
	 	 	 
	 	By:	/s/ Tammy Bliek
	 	 	Name:  Tammy Bliek
	 	 	Title:    Vice President





 




    	 



    	 



    

 

	 	WELLS FARGO BANK, NATIONAL
ASSOCIATION,
	 	as the Account Bank
	 	 	 
	 	 	 
	 	By:	/s/ Tammy Bliek
	 	 	Name:  Tammy Bliek
	 	 	Title:    Vice President