Exhibit 10.1

 

FOURTH AMENDMENT TO CREDIT AND SECURITY AGREEMENT

 

FOURTH AMENDMENT TO CREDIT AND SECURITY AGREEMENT (this “Fourth Amendment”) dated as of February 26, 2018 and effective as of July 5, 2017, by and among MVC CAPITAL, INC., a corporation formed under the laws of the State of Delaware (the “Borrower”), MVC FINANCIAL SERVICES, INC., a corporation formed under the laws of the State of Delaware, MVC CAYMAN, an exempted company incorporated under the laws of the Cayman Islands, MVC GP II, LLC, a limited liability company formed under the laws of the State of Delaware, and MVC PARTNERS LLC, a limited liability company formed under the laws of the State of Delaware, (collectively, the “Guarantors”, and each a “Guarantor”), the financial institutions or entities from time to time parties to the Loan Agreement (as such term is defined herein) (collectively, the “Lenders”, and each a “Lender”), and SANTANDER BANK, N.A., as agent (the “Agent”), and WINTRUST BANK, as syndication agent (“Wintrust”).

 

BACKGROUND

 

WHEREAS, Borrower, Lenders and Agent are parties to a Credit and Security Agreement dated as of December 9, 2015 (as same has been and may be further modified, amended, supplemented and/or restated from time to time, the “Credit Agreement”). Capitalized terms used herein shall have the meanings given to them in the Credit Agreement unless otherwise specified.

 

WHEREAS, Borrower has requested that the Agent and the Lenders amend the Credit Agreement as described in this Fourth Amendment and waive certain terms of the Credit Agreement in connection with the Borrower’s divestiture of its investment in US Gas & Electric, Inc.

 

WHEREAS, Agent and Lenders are willing to amend certain terms and conditions of the Credit Agreement and grant the requested waivers as set forth herein.

 

NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements herein contained, it is agreed as follows:

 

1.                                      Amendments to Credit Agreement.  As of the date hereof, the Credit Agreement is amended as follows:

 

1.1                               Definitions.  Section 1.1 of the Credit Agreement is amended by the addition, the deletion or the amendment and restatement of the following definitions, as applicable, to read in their entirety as follows:

 

(a)                                 The definition of Excluded Collateral is hereby amended by replacing the “.” at the end of subsection (i) with “; and” and the addition of a new subsection (j) to read in its entirety as follows:

 

“(j)                              that certain Subordinated Promissory Note dated July 5, 2017 in the original principal amount of Forty Million Five Hundred Twenty Six Thousand Seven Hundred Forty-Five and 40/100 Dollars ($40,526,745.40)

 











 

made by U.S. Gas & Electric, Inc. to the Borrower, as may be amended, restated, extended or otherwise modified from time to time.”

 

“Fourth Amendment Closing Date” means as of February 26, 2018 and effective as of July 5, 2017.

 

1.2                               UCC Financing Statement. The Agent hereby authorizes Borrower to file the UCC Financing Statement attached hereto as Exhibit A to evidence the partial release of the Agent’s security interest in the Subordinated Promissory Note referenced in Section 1.1(a) hereinabove.

 

1.3                               No Other Changes. Except as explicitly amended by this Fourth Amendment, all of the terms and conditions of the Credit Agreement shall remain in full force and effect and shall apply to all Revolving Loans and Letters of Credit thereunder.

 

2.                                      Conditions Precedent. This Fourth Amendment shall be effective when the Agent shall have received an executed copy hereof and each of the following documents (collectively, the “Fourth Amendment Documents”):

 

(a)                                 this Fourth Amendment duly executed; and

 

(b)                                 the Acknowledgment and Agreement of Guarantors set forth at the end of this Fourth Amendment, duly executed by the Guarantor.

 

3.                                      Representations and Warranties. Borrower hereby represents and warrants to Agent and Lenders as follows:

 

(a)                                 Borrower has all requisite power and authority to execute this Fourth Amendment and the other Fourth Amendment Documents and to perform all of its obligations hereunder and thereunder, and the Fourth Amendment Documents have been duly executed and delivered by Borrower and constitute the legal, valid and binding obligation of Borrower, enforceable in accordance with their terms, subject to applicable Federal and state bankruptcy and insolvency laws affecting generally the rights of creditors.

 

(b)                                 The execution, delivery and performance by Borrower of this Fourth Amendment and the other Fourth Amendment Documents have been duly authorized by all necessary corporate action and do not (i) require any authorization, consent or approval by any governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (ii) violate any provision of any law, rule or regulation or of any order, writ, injunction or decree presently in effect, having applicability to Borrower, or the certificate of incorporation or bylaws of Borrower, or (iii) result in a breach of or constitute a default under any indenture or loan or Credit Agreement or any other agreement, lease or instrument to which Borrower is a party or by which it or its properties may be bound or affected.

 

(c)                                  All of the representations and warranties contained in the Credit Agreement are correct in all material respects on and as of the date hereof as though made on and

 

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as of such date, except to the extent that such representations and warranties relate solely to an earlier date.

 

4.                                      References. All references in the Credit Agreement to the “Agreement” shall be deemed to refer to the Credit Agreement as amended hereby; and any and all references in the Loan Documents to the Credit Agreement shall be deemed to refer to the Credit Agreement as amended hereby.

 

5.                                      No Waiver.  The execution of this Fourth Amendment and of any documents related hereto shall not be deemed to be a waiver of any Default or Event of Default under the Credit Agreement or breach, default or event of default under any Loan Documents or other document held by Agent or Lenders, whether or not known to Agent or Lenders and whether or not existing on the date of this Fourth Amendment.

 

6.                                      Release.  Borrower and Guarantors by signing the Acknowledgment and Agreement of Guarantors set forth below, each hereby absolutely and unconditionally releases and forever discharges the Agent, Lenders and L/C Issuers, and any and all participants, parent corporations, subsidiary corporations, affiliated corporations, insurers, indemnitors, successors and assigns thereof, together with all of the present and former directors, officers, agents and employees of any of the foregoing, from any and all claims, demands or causes of action of any kind, nature or description, whether arising in law or equity or upon contract or tort or under any state or federal law or otherwise, which Borrower or Guarantors has had, now has or has made claim to have against any such person for or by reason of any act, omission, matter, cause or thing whatsoever arising from the beginning of time to and including the date of this Fourth Amendment, whether such claims, demands and causes of action are matured or unmatured or known or unknown.

 

7.                                      Costs and Expenses. Borrower hereby reaffirms its agreement under the Credit Agreement to pay or reimburse Agent, Lenders and L/C Issuer on demand for all reasonable costs and expenses incurred by Agent, Lenders and L/C Issuer in connection with the Loan Documents, including without limitation all reasonable fees and disbursements of legal counsel. Without limiting the generality of the foregoing, Borrower specifically agrees to pay all reasonable fees and disbursements of counsel to Agent, Lenders and L/C Issuer for the services performed by such counsel in connection with the preparation of this Fourth Amendment and the documents and instruments incidental hereto.  Borrower hereby agrees that Agent may, at any time or from time to time in its sole discretion and without further authorization by Borrower, make an Advance to Borrower under the Credit Agreement, or apply the proceeds of any Advance, for the purpose of paying any such fees, disbursements, costs and expenses.

 

9.                                Miscellaneous. This Fourth Amendment and the Acknowledgment and Agreement of Guarantors may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original and all of which counterparts, taken together, shall constitute one and the same instrument.  Delivery of an executed counterpart of a signature page to this Fourth Amendment by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Fourth Amendment.

 

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[SIGNATURE PAGE FOLLOWS]

 

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

 

	
 
    	
MVC   CAPITAL, INC.
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Michael   T. Tokarz
    
	
 
    	
Name:
    	
MICHAEL   T. TOKARZ
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
SANTANDER   BANK, N.A.,
    
	
 
    	
as   Agent and as a Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Pierre A. Desbiens
    
	
 
    	
Name:
    	
Pierre   A. Desbiens
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Mark Metsky
    
	
 
    	
Name:
    	
Mark   Metsky
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
WINTRUST   BANK, as Lender
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ John Paul Hills
    
	
 
    	
Name:
    	
John Paul Hills
    
	
 
    	
Title:
    	
 
    


 











 

ACKNOWLEDGMENT AND AGREEMENT OF GUARANTORS

 

The undersigned, each a Guarantor of the Indebtedness of MVC Capital, Inc. (the “Borrower”) to Santander Bank, N.A. ( “Agent”) for itself, as a lender, and as agent for the other lenders (the “Lenders”) signatory to that certain Credit and Security Agreement dated as of December 9, 2015 by and among the Borrower, the Lenders, and the Agent, pursuant to the Guaranty Agreement dated as of December 9, 2015 (the “Guaranty”), hereby (i) acknowledges receipt of the foregoing amendment; (ii) consents to the terms and execution thereof; (iii) reaffirms its obligations to Agent, Lenders or L/C Issuer pursuant to the terms of the Guaranty; and (iv) acknowledges that the Agent and Lenders may amend, restate, extend, renew or otherwise modify the Credit Agreement and any indebtedness or agreement of the Borrower, or enter into any agreement or extend additional or other credit accommodations, without notifying or obtaining the consent of the undersigned and without impairing the liability of the undersigned under the Guaranty for all of the Borrower’s present and future indebtedness to the Agent and Lenders.

 

	
 
    	
MVC   FINANCIAL SERVICES, INC.
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/  Michael T. Tokarz
    
	
 
    	
Name:
    	
MICHAEL   T. TOKARZ
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
MVC   CAYMAN
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/  Michael T. Tokarz
    
	
 
    	
Name:
    	
MICHAEL   T. TOKARZ
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
MVC   GP II, LLC
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/  James Pinto
    
	
 
    	
Name:
    	
JAMES   PINTO
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
MVC   PARTNERS LLC
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/  Michael T. Tokarz
    
	
 
    	
Name:
    	
MICHAEL   T. TOKARZ
    
	
 
    	
Title:
    	
 
    


 

	
Date:
    	
dated   as of February 26, 2018
    
	
 
    	
and   effective as of July 5, 2017
    


 











 

EXHIBIT A

 

UCC FINANCING STATEMENT AMENDMENT