FS Energy and Power Fund 8-K


Exhibit 10.1


 


 


 


FIRST AMENDMENT AGREEMENT


 


AMENDMENT AGREEMENT (“Amendment”) dated as
of August 18, 2014 to the Committed Facility Agreement dated as of December 11, 2013 between BNP Paribas Prime Brokerage, Inc.,
on behalf of itself and as agent for the BNPP Entities (“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 increase the Maximum Commitment
Financing (as defined in the Agreement) and 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 Section 1 of the Agreement (‘Definitions’)	 
	 	 	 	 
	 	(a)	The definition of “Maximum Commitment Financing” in Section 1 of the Agreement is hereby amended by replacing
the number “200,000,000” currently appearing therein with the number “300,000,000”.
	 	 	 	 
	 	(b)	The following definitions are hereby added to Section 1 of the Agreement in alphabetical order:
	 	 	 	 
	 	 	(i)	“Funding Event” means on any day, (the “Rating Decline Date of Determination”) BNP
Paribas’ long-term credit rating has declined to a level three or more notches below its highest rating by any of Standard
& Poor’s Ratings Services, Moody’s Investor Service, Inc. or Fitch Ratings, Ltd. during the period beginning on
and including the Closing Date and ending on and including the Rating Decline Date of Determination.
	 	 	 	 
	 	 	(ii)	“Notice Date” means the day on which BNPP PB delivers the Facility Modification Notice.	 
	 	 	 	 
	2.	Amendment to Section 6	 
	 	 	 	 
	 	 	Section 6 of the Agreement is hereby amended by adding
the following to the end thereof:	 
	 	 	 	 
	 	 	“Notwithstanding the foregoing or anything to
the contrary herein, if a Funding Event has occurred, then upon delivery of a Facility Modification Notice the Outstanding Debit
Financing which, for the avoidance of doubt, would otherwise have been subject to the commitment described in the Agreement, shall
be due and payable immediately upon demand by BNPP PB, Inc. on any day on or after the 29th calendar day following the Notice Date;
provided that, if such 29th calendar day is not a Business Day, then such Outstanding Debit Financing shall be due and payable
immediately upon demand by BNPP PB on any day on or after the Business Day immediately preceding such 29th calendar day.”
	 	 	 	 
	3.	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.
	 	 	 	 






  




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	4.	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.
	 	 	 
	 	(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/ Raphael Masgnaux	/s/ Gerald F. Stahlecker
	 	 
	Name:	Raphael Masqnaux	Name:	Gerald F. Stahlecker
	Title:	Managing Director 	Title:	Executive Vice President 
	 	 
	 	 
	 	 
	/s/ Edward Speal	 
	Name:	Edward Speal	 
	Title:	 	 



 





 






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