Exhibit 10.20
TENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”), dated as of August 7, 2012 (the “Amendment Date”), between NEW MOUNTAIN FINANCE SPV FUNDING, L.L.C., a Delaware limited liability company (the “Borrower”), NEW MOUNTAIN FINANCE HOLDINGS, L.L.C., as collateral administrator (the “Collateral Administrator”), WELLS FARGO SECURITIES, LLC, a Delaware limited liability company (the “Administrative Agent”), WELLS FARGO BANK NATIONAL ASSOCIATION, as collateral custodian (the “Collateral Custodian”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as a lender (the “Lender”).
WHEREAS, the Borrower, the Collateral Administrator, the Administrative Agent, the Collateral Custodian, the Lender and the other lenders party from time to time thereto, are party to the Loan and Security Agreement, dated as of October 27, 2010 (as amended from time to time prior to the date hereof, the “Loan and Security Agreement”), providing, among other things, for the making and the administration of the Advances by the lenders to the Borrower;
WHEREAS, the Borrower, the Collateral Administrator, the Administrative Agent, the Collateral Custodian and the Lender desire to amend the Loan and Security Agreement, in accordance with Section 12.1 of the Loan and Security Agreement and 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. Terms used but not defined herein have the respective meanings given to such terms in the Loan and Security Agreement.
ARTICLE II
Amendments to Loan and Security Agreement
SECTION 2.1. Section 1.1 of the Loan and Security Agreement and Annex B to the Loan and Security Agreement shall each be amended by deleting “$175,000,000” where it appears therein and inserting in lieu thereof “$200,000,000”.
SECTION 2.2. Section 1.1 of the Loan and Security Agreement shall be amended by deleting clause (f) in the definition of “Eligible Obligor” and inserting the following in lieu thereof:
“(f) where the sum of the OLB of all Eligible Loans made to such Obligor (including any Affiliate thereof) does not exceed $20,000,000.”
SECTION 2.3. Section 1.1 of the Loan and Security Agreement shall be amended by deleting the definitions of “Non-Usage Fee Rate” and “Unused Facility Amount” and inserting in lieu thereof the following and by inserting the following definition of “Tenth Amendment Effective Date” in the appropriate alphabetical order:
“Non-Usage Fee Rate”: (a) Prior to the Tenth Amendment Effective Date, (i) 0.50% of the first $35,000,000 of the Unused Facility Amount and (ii) a rate per annum equal to the then-current Applicable Spread on the portion of the Unused Facility Amount in excess of $35,000,000, (b) during the first six (6) months following the Tenth Amendment Effective Date, (i) 0.50% on the first $60,000,000 of the Unused Facility Amount and (ii) a rate per annum equal to the then-current Applicable Spread on the portion of the Unused Facility Amount in excess of $60,000,000, (c) from six (6) to eight (8) months following the Tenth Amendment Effective Date, (i) 0.50% on the first $46,666,667 of the Unused Facility Amount and (ii) a rate per annum equal to the then-current Applicable Spread on the portion of the Unused Facility Amount in excess of $46,666,667 and (d) thereafter, (i) 0.50% on the first $40,000,000 of the Unused Facility Amount and (ii) a rate per annum equal to the then-current Applicable Spread on the portion of the Unused Facility Amount in excess of $40,000,000.
“Tenth Amendment Effective Date”: The date on which the Tenth Amendment, dated as of August 7, 2012, to this Agreement becomes effective.
“Unused Facility Amount”: At any time, (a) the Facility Amount minus (b) the Advances Outstanding at such time.
ARTICLE III
Representations and Warranties
SECTION 3.1. The Borrower hereby represents and warrants to the Administrative Agent and the Lender that, as of the Amendment Date, (i) no Default, Event of Default, Change of Control or Collateral Administrator Termination Event has occurred and is continuing and (ii) the representations and warranties of the Borrower contained in the Loan and Security 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
Condition Precedent
This Amendment shall become effective as of the Amendment Date upon the satisfaction of the following conditions (or until such conditions are waived in writing by the Administrative Agent in its sole discretion):
(a) this Amendment shall have been duly executed by, and delivered to, the parties hereto;
(b) the Collateral Administrator on behalf of the Borrower shall have paid, or caused to be paid, to the Administrative Agent a structuring fee in an amount equal to $316,502;
(c) the Administrative Agent shall have received satisfactory evidence that the Borrower and the Collateral Administrator have obtained all required consents and approvals of all Persons to the execution, delivery and performance of this Amendment and the consummation of the transactions contemplated hereby;
(d) each applicable Lender shall have received a duly executed copy of its Variable Funding Note, in a principal amount equal to the increased Commitment of such Lender; and
(e) the Administrative Agent shall have received the executed legal opinion or opinions of Simpson Thacher & Bartlett LLP, counsel to the Borrower, covering authorization and enforceability of this Amendment in form and substance acceptable to the Administrative Agent in its reasonable discretion.
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, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 5.3. Ratification. Except as expressly amended hereby, the Loan and Security 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 Security 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the Amendment Date.
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NEW MOUNTAIN FINANCE SPV FUNDING, L.L.C., as the Borrower | |
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By: New Mountain Finance Holdings, L.L.C., its managing member | |
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By: |
/s/ ADAM WEINSTEIN |
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Name: Adam Weinstein |
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Title: Chief Financial Officer and Treasurer |
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NEW MOUNTAIN FINANCE HOLDINGS, L.L.C., as the Collateral Administrator | |
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By: |
/s/ ADAM WEINSTEIN |
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Name: Adam Weinstein |
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Title: Chief Financial Officer and Treasurer |
[Signature Page to Tenth Amendment to Loan and Security Agreement]
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WELLS FARGO SECURITIES, LLC, | ||
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as Administrative Agent | ||
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By: |
/s/ ALLAN SCHMITT | |
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Name: |
Allan Schmitt |
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Title: |
Vice President |
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WELLS FARGO BANK, NATIONAL ASSOCIATION, | ||
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representing 100% of the aggregate Commitments of the Lenders in effect as of the date hereof | |
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By: |
/s/ JASON POWERS | |
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Name: |
Jason Powers |
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Title: |
Managing Director |
[Signature Page to Tenth Amendment to Loan and Security Agreement]
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WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Collateral Custodian | ||
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By: |
/s/ REID C. DENNY | |
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Name: |
Reid C. Denny |
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Title: |
Vice President |
[Signature Page to Tenth Amendment to Loan and Security Agreement]