FS Energy and Power Fund 8-K


Exhibit 10.1


 





AMENDMENT
NO. 3 TO CREDIT AGREEMENT


 


AMENDMENT
NO. 3 TO CREDIT AGREEMENT (this "Amendment") dated as of November 14, 2019, by and among GLAWDYNE FUNDING, LLC,
as borrower (the "Borrower"); GOLDMAN SACHS BANK USA ("GS Bank"), as sole lead arranger (the
"Arranger"), as sole lender (the "Lender") and as administrative agent (the "Administrative
Agent"); FS Energy and Power Fund, as equity holder and investment manager
(the "Investment Manager"); VIRTUS GROUP, LP, as collateral administrator (the "Collateral Administrator");
and CITIBANK, N.A., as collateral agent (the "Collateral Agent").


 


The
Borrower, the Arranger, the Lenders, the Administrative Agent, the Collateral Administrator and the Collateral Agent are parties
to the Credit Agreement dated as of April 19, 2017 (as amended by Amendment No. 1 dated as of September 6, 2019, Amendment No.
2 dated as of October 15, 2019 and as may be further amended, restated, supplemented or otherwise modified from time to time,
the "Credit Agreement").


 


The
parties hereto wish now to amend the Credit Agreement in certain respects. Accordingly, the parties hereto hereby agree as follows:


 


Section
1. Definitions. Except as otherwise defined in this Amendment, terms defined in the Credit Agreement are used herein as
defined therein. This Amendment shall constitute a Transaction Document for all purposes of the Credit Agreement and the other
Transaction Documents.


 


Section
2. Credit Agreement Amendments. Subject to the satisfaction of the conditions precedent specified in Section 3 below
and Section 11.5 of the Credit Agreement, but effective as of the date hereof, the Credit Agreement is hereby amended by restating
the definition of "Maturity Date" to read in its entirety as follows:


 


""Maturity
Date" means, the earlier of (a) December 2, 2019 and (b) the date on which all Loans shall become due and payable in
full hereunder, whether by acceleration or otherwise."


 


Section
3. Representations and Warranties. The Borrower represents and warrants to the Lenders and the Administrative Agent that
(a) the representations and warranties set forth in Section 4 of the Credit Agreement, and in each of the other Transaction
Documents, are true and complete on the date hereof as if made on and as of the date hereof (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, such representation or warranty shall be true and correct
as of such specific date), and as if each reference in said Section 4 to "this Agreement" included reference to this
Amendment (it being agreed that it shall be deemed to be an Event of Default under the Credit Agreement if any of the foregoing
representations and warranties shall prove to have been incorrect in any material respect when made) and (b) no Default or
Event of Default has occurred and is continuing.


 


Section
4. Conditions Precedent. The amendments set forth in Section 2 hereof shall become effective, as of the date hereof, upon
the Administrative Agent's receipt of counterparts of this Amendment executed by the parties hereto.


 


Section
5. Confirmation of Collateral Documents. The Borrower (a) confirms its obligations under the Collateral Documents, (b)
confirms that its obligations under the Credit Agreement as amended hereby are entitled to the benefits of the pledges and guarantees,
as applicable, set forth in the Collateral Documents, (c) confirms that its obligations under the Credit Agreement as amended
hereby constitute "Secured Obligations" (as defined in the Collateral Documents) and (d) agrees that the Credit Agreement
as amended hereby is the Credit Agreement under and for all purposes of the Collateral Documents. Each party, by its execution
of this Amendment, hereby confirms that the Secured Obligations shall remain in full force and effect, and such Secured Obligations
shall continue to be entitled to the benefits of the grant set forth in the Collateral Documents.


 


 


    	
 




    	 



    
     

Section
6. Limited Amendment. The amendments set forth in Section 2 hereof shall be effective only in the specific instances described
herein and nothing herein shall be deemed to limit or bar any rights or remedies of any Lender, the Administrative Agent or any
other Secured Party or to constitute an amendment or waiver of any other term, provision or condition of any of the Transaction
Documents in any other instance than as expressly set forth herein or prejudice any right or remedy that any Lender, the Administrative
Agent or any other Secured Party may now have or may in the future have under any of the Transaction Documents. For the avoidance
of doubt and without limiting the generality of the foregoing, the parties agree that no other change, amendment or consent with
respect to the terms and provisions of any of the Transaction Documents (including without limitation the Appendices, Exhibits
and Schedules thereto) is intended or contemplated hereby (which terms and provisions remain unchanged and in full force and effect).


 


Section
7. Miscellaneous. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute
one and the same amendatory instrument and any of the parties hereto may execute this Amendment by signing any such counterpart.
Delivery of a counterpart by electronic transmission shall be effective as delivery of a manually executed counterpart hereof.
This Amendment and any right, remedy, obligation, claim, controversy, dispute or cause of action (whether in contract, tort or
otherwise) based upon, arising out of or relating to this Amendment shall be governed by, and construed in accordance with, the
law of the State of New York without regard to conflicts of law principles that would lead to the application of laws other than
the law of the State of New York. GS Bank, as Administrative Agent and the sole Lender, hereby directs the Collateral Agent and
the Collateral Administrator to execute and deliver this Amendment.


 


[Signature
pages follow.]


 


 




    	
 




    	 



    

 


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


 
 


	 	GLADWYNE FUNDING LLC, as Borrower
	 	 
	 	 
	 	By: 	/s/ Edward T. Gallivan, Jr.
	 	Name:

        Title:
	Edward T. Gallivan, Jr.
Chief Financial Officer



  




    	[Amendment to Credit Agreement]
 




    	 



    




 

	 	GOLDMAN SACHS BANK USA, as Administrative Agent
	 	 
	 	 
	 	By: 	/s/ Joseph McNeila
	 	Name:

        Title:
	Joseph McNeila
Managing Director






 


 

	 	GOLDMAN SACHS BANK USA, as Lender
	 	 
	 	 
	 	By: 	/s/ Joseph McNeila
	 	Name:

        Title:
	Joseph McNeila
Managing Director



 


 




    	[Amendment to Credit Agreement]
 




    	 



    

 

	 	FS ENERGY AND POWER FUND, as Equity Holder and Investment Manager
	 	 
	 	 
	 	By: 	/s/ Edward T. Gallivan, Jr.
	 	Name:

        Title:
	Edward T. Gallivan, Jr.
Chief Financial Officer



 


 







    	[Amendment to Credit Agreement]
 




    	 



    

 

	 	VIRTUS GROUP, LP, as the Collateral Administrator
	 	 
	 	By: 	/s/ Joseph U. Elston
	 	Name:

        Title:
	Joseph U. Elston
Partner






 


 




    	[Amendment to Credit Agreement]
 




    	 



    

 

	 	CITIBANK, N.A., as the Collateral Agent
	 	 
	 	 
	 	By: 	/s/ Thomas Varcados
	 	Name:

        Title:
	Thomas Varcados
Senior
Trust Officer



 


 



    	[Amendment to Credit Agreement]