UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

_________________

 

FORM 8-K

_________________

 

CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934

 

Date of report (Date of earliest event reported): November 2, 2016 (October 28, 2016)

 

Business Development Corporation of America

 

(Exact Name of Registrant as Specified in Its Charter)

 

Maryland 814-00821 27-2614444
(State or Other Jurisdiction of
Incorporation)
(Commission File Number) (IRS Employer Identification No.)

 

9 West 57 th Street, Suite 4920
New York, New York 10019

(Address, Including Zip Code, of Principal Executive Offices)

 

(212) 588-6770
(Registrant’s Telephone Number, Including Area Code)

 

405 Park Avenue, 14th Floor
New York, New York 10022

(Former Name or Former Address, if Changed Since Last Report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

 

ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.

 

Investment Advisory Agreement

 

On July 19, 2016, American Realty Capital II Advisors, LLC, the parent of BDCA Adviser, LLC (the “Adviser”), the investment adviser to Business Development Corporation of America, a Maryland Corporation (the “Company”), entered into a membership interest purchase agreement with BSP Acquisition I, LLC, an affiliate of Benefit Street Partners L.L.C. (“BSP”), as amended, pursuant to which BSP acquired all of the outstanding limited liability company interests of the Adviser (the “Transaction”).

 

In connection with the Transaction, the Company entered into a new investment advisory agreement with the Adviser, effective as of November 1, 2016 (the “New Agreement”), to allow the Adviser to serve as investment adviser to the Company following the closing of the Transaction, which occurred on November 1, 2016. As discussed in more detail under Item 5.07 below, the New Agreement was approved by the Company’s stockholders at a Special Meeting on October 28, 2016.

 

The New Agreement may be terminated by either party on 60 days’ written notice. The New Agreement will continue in effect for an initial period of two years and thereafter will continue in effect from year to year if such continuance is approved at least annually by both (a) the vote of the Company’s board of directors (the “Board”) or the vote of a majority of the Company’s outstanding voting securities and (b) the vote of a majority of the Board who are not interested persons (as defined in the Investment Company Act of 1940, as amended (the “1940 Act”)). All material terms of the New Agreement, which will have an initial term of two (2) years, are substantially similar in all material respects to the current investment advisory agreement, dated June 23, 2016, including all amendments thereto, between the Company and the Adviser (the “Existing Advisory Agreement”).

 

A more detailed description of the terms of the New Agreement was previously reported on the Company’s Definitive Proxy Statement filed with the Securities Exchange Commission on September 16, 2016. A copy of the New Agreement is filed with this Current Report on Form 8-K as Exhibit 99.1 hereto.

 

Administration Agreement

 

Pursuant to an administration agreement, ARC Advisory Services, LLC (“ARC Advisory”), a wholly-owned subsidiary of AR Global Investments, LLC, previously furnished the Company with, among other things, office facilities, equipment, clerical, bookkeeping and record keeping services (the “ARC Administration Agreement”). In addition, ARC Advisory assisted the Company in determining and publishing its net asset value and the filing of its tax returns. In connection with the closing of the Transaction, the Company terminated the ARC Administration Agreement and entered into a new administration agreement with BSP on November 1, 2016 (the “New Administration Agreement”). In connection with the New Administration Agreement, BSP will provide the Company with office facilities and administrative services previously provided by ARC Advisory. A copy of the New Administration Agreement is filed with this Current Report on Form 8-K as Exhibit 99.2 hereto.

 

ITEM 1.02 TERMINATION OF A MATERIAL DEFINITIVE AGREEMENT.

 

Consummation of the Transaction resulted in a change in control of the Adviser, and as a result, an assignment and subsequent termination of the Existing Advisory Agreement in accordance with the 1940 Act.  Accordingly, the Existing Advisory Agreement terminated upon the closing of the Transaction on November 1, 2016. The description of the Transaction and the Existing Advisory Agreement set forth in Item 1.01 is hereby incorporated by reference. No material termination penalties were incurred by the Company in connection with the termination of the Existing Advisory Agreement.

 

Consummation of the Transaction also resulted in the termination of the existing ARC Administration Agreement. The description of the Transaction and the ARC Administration Agreement set forth in Item 1.01 is hereby incorporated by reference. No material termination penalties were incurred by the Company in connection with the termination of the ARC Administration Agreement.

 

 

 

 

ITEM 3.02 UNREGISTERED SALES OF EQUITY SECURITIES.

 

In connection with the closing of the Transaction on November 1, 2016, an affiliate of BSP purchased $10 million of the Company’s common stock based on the Company’s net asset value per share in a private placement in reliance on Section 4(a)(2) of the Securities Act of 1933, as amended.

 

ITEM 5.02 DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS.

 

In connection with the closing of the Transaction, and effective as of November 1, 2016, the following individuals resigned from their positions with the Company: (i) Peter M. Budko resigned as a member of the Company’s Board of Directors (the “Board”) and from his position as the Chief Executive Officer of the Company; and (ii) Edward M. Weil, Jr. resigned as a member of the Board . In addition, James A. Fisher departed from his role as President of the Adviser and President/Chief Operating Officer of the Company on October 31, 2016.

 

In connection with the closing of the Transaction, and effective as of November 1, 2016, Richard J. Byrne was appointed to fill the vacancy created by the resignation of Mr. Budko as the Chairman of the Board. Mr. Byrne will serve until the Company’s 2017 Annual Meeting of Stockholders and until his successor is duly elected and qualifies or until his earlier resignation, removal from office, death or incapacity. Mr. Byrne was also appointed to serve as the Company’s Chief Executive Officer and President.

 

In addition, as disclosed in Item 5.07 herein, at the Special Meeting of the Company held on October 28, 2016, the stockholders of the Company elected Ronald J. Kramer as a new Non-Interested Director pursuant to Section 16(b) of the 1940 Act.

 

Biographical information for Messrs. Kramer, Byrne, Budko, Fisher and Weil may be found in the Company’s Definitive Proxy Statement filed with the Securities Exchange Commission on September 16, 2016.

 

ITEM 5.07 Submission of Matters to a Vote of Security Holders.

 

The Company held a special meeting (the “Special Meeting”) on October 28, 2016. There were present at the Special Meeting, in person or by proxy, stockholders holding an aggregate of 94,180,023 shares of the Company’s common stock, out of a total number of 180,904,847 shares of the Company’s common stock issued and outstanding and entitled to vote at the Special Meeting. Below is a description of the matters voted on at the Special Meeting and the final results of such voting.

 

Proposal 1: Approval of New Advisory Agreement Between the Company and the Adviser, to Take Effect Upon a Change of Control of the Adviser

 

In connection with the Transaction, the Company’s stockholders voted in favor of the proposal to approve the New Advisory Agreement between the Company and the Adviser, to take effect upon consummation of the Transaction, as set forth below:

 

Votes For Votes Against Abstain
86,607,548 3,431,135 4,141,340

 

Proposal 2: Election of a Director

 

The following individual was elected as a Non-Interested Director to serve for a term expiring in 2017 and until his successor has been duly elected and qualified, as set forth below:

 

  Votes For Votes Against Abstain
Ronald J. Kramer 86,728,671 3,318,298 4,133,054

 

 

 

 

Proposal 3: Approval of the Adjournment of the Special Meeting, if Necessary or Appropriate, to Solicit Additional Proxies

 

The Company’s stockholders voted in favor of the proposal to approve the adjournment of the Special Meeting, if necessary or appropriate, to solicit additional proxies, as set forth below:

 

Votes For Votes Against Abstain
86,949,852 3,295,436 3,934,735

 

Item 8.01. Other Events.

 

The Company issued a press release, filed herewith as Exhibit 99.3, and by this reference incorporated herein, on November 1, 2016 announcing the completion of the Transaction.

 

Item 9.01. Financial Statements and Exhibits.

 

  (d) Exhibits

 

Exhibit No.   Description
99.1   Investment Advisory and Management Services Agreement, dated as of November 1, 2016, by and between the Company and the Adviser.
99.2   Administration Agreement, dated as of November 1, 2016, by and between the Company and BSP.
99.3   Press release, dated November 1, 2016.

 

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

BUSINESS DEVELOPMENT CORPORATION OF AMERICA  

   
Date: November 2, 2016 By: /s/ Richard J. Byrne
    Name: Richard J. Byrne
    Title: Chief Executive Officer and President

 

 

 

 

Exhibit 99.1

 

INVESTMENT ADVISORY AND MANAGEMENT SERVICES AGREEMENT

 

This Investment Advisory and Management Services Agreement (the “ Agreement” ) is made as of the 1st day of November, 2016, by and between BUSINESS DEVELOPMENT CORPORATION OF AMERICA, a Maryland corporation (the “ Company ”), and BDCA ADVISER, LLC, a Delaware limited liability company (the “ Adviser ”).

 

WHEREAS , the Company is a non-diversified, closed-end management investment company that has elected to be treated as a business development company (“BDC”) under the Investment Company Act of 1940, as amended (together with the rules promulgated thereunder, the “Investment Company Act”);

 

WHEREAS , the Adviser is registered as an investment adviser under the Investment Advisers Act of 1940, as amended (together with the rules promulgated thereunder, the “Advisers Act”); and

 

WHEREAS , the Company desires to retain the Adviser to provide investment advisory services to the Company on the terms and conditions hereinafter set forth, and the Adviser wishes to be retained to provide such services;

 

NOW, THEREFORE , in consideration of the premises and for other good and valuable consideration, the parties hereby agree as follows:

 

1. Duties of the Adviser .

 

(a) Retention of Adviser . The Company hereby employs the Adviser to act as the investment adviser to the Company and to manage the investment and reinvestment of the assets of the Company, subject to the supervision of the Board of Directors of the Company (the “ Board ”), for the period and upon the terms herein set forth:

 

(i) in accordance with the investment objectives, policies and restrictions that are set forth in the Company’s Registration Statement on Form N-2 filed with the Securities and Exchange Commission (the “ SEC ”), as amended from time to time (the “ Registration Statement ”), if any, and/or the Company’s periodic reports filed with the SEC from time to time; and

 

(ii) during the term of this Agreement in accordance with all other applicable federal and state laws, rules and regulations, and the Company’s charter and bylaws, in each case as amended from time to time,

 

(b) Responsibilities of Adviser . Without limiting the generality of the foregoing, the Adviser shall, during the term and subject to the provisions of this Agreement:

 

(i) determine the composition and allocation of the portfolio of the Company, the nature and timing of the changes therein and the manner of implementing such changes;

 

(ii) identify, evaluate and negotiate the structure of the investments made by the Company;

 

(iii) execute, monitor and service the Company’s investments;

 

(iv) determine the securities and other assets that the Company shall purchase, retain, or sell;

 

(v) perform due diligence on prospective portfolio companies; and

 

(vi) provide the Company with such other investment advisory, research and related services as the Company may, from time to time, reasonably require for the investment of its funds.

 

(c) Power and Authority . To facilitate the Adviser’s performance of these undertakings, but subject to the restrictions contained herein, the Company hereby delegates to the Adviser, and the Adviser hereby accepts, the power and authority on behalf of the Company to effectuate its investment decisions for the Company, including the execution and delivery of all documents relating to the Company’s investments and the placing of orders for other purchase or sale transactions on behalf of the Company. In the event that the Company determines to acquire debt financing, the Adviser shall arrange for such financing on the Company’s behalf, subject to the oversight and approval of the Board. If it is necessary for the Adviser to make investments on behalf of the Company through a special purpose vehicle or a special tax blocker vehicle, the Adviser shall have authority to create, or arrange for the creation of, such special purpose vehicles and to make investments through such special purpose vehicles in accordance with applicable law and after full consideration of the additional upfront and recurring costs and taxes, and administrative requirements related to such special purpose vehicle. The Company also grants to the Adviser power and authority to engage in all activities and transactions (and anything incidental thereto) that the Adviser deems, in its sole discretion, appropriate, necessary or advisable to carry out its duties pursuant to this Agreement.

 

(d) Acceptance of Employment . The Adviser hereby accepts such employment and agrees during the term hereof to render the services described herein for the compensation provided herein, subject to the limitations contained herein.

 

(e) Sub-Advisers . The Adviser is hereby authorized to enter into one or more sub-advisory agreements with other investment advisers (each, a “ Sub-Adviser ”) pursuant to which the Adviser may obtain the services of the Sub-Adviser(s) to assist the Adviser in fulfilling its responsibilities hereunder. Specifically, the Adviser may retain a Sub-Adviser to recommend specific securities or other investments based upon the Company’s investment objectives, policies and restrictions, and work, along with the Adviser, in sourcing, structuring, negotiating, arranging or effecting the acquisition or disposition of such investments and monitoring investments on behalf of the Company, subject to the oversight of the Adviser and the Company.

 

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(i) The Adviser and not the Company shall be responsible for any compensation payable to any Sub-Adviser.

 

(ii) Any sub-advisory agreement entered into by the Adviser shall be in accordance with the requirements of the Investment Company Act, including without limitation the requirements relating to Board and Company stockholder approval thereunder, and other applicable federal and state law.

 

(iii) Any Sub-Adviser shall be subject to the same fiduciary duties imposed on the Adviser pursuant to this Agreement, the Investment Company Act and the Investment Advisers Act of 1940 (the “Advisers Act”), as well as other applicable federal and state law.

 

(f) Independent Contractor Status . The Adviser shall, for all purposes herein provided, be deemed to be an independent contractor and, except as expressly provided or authorized herein, shall have no authority to act for or represent the Company in any way or otherwise be deemed an agent of the Company.

 

(g) Record Retention . Subject to review by and the overall control of the Board, the Adviser shall keep and preserve for the period required by the Investment Company Act any books and records relevant to the provision of its investment advisory services to the Company and shall specifically maintain all books and records with respect to the Company’s portfolio transactions and shall render to the Board such periodic and special reports as the Board may reasonably request or as may be required under applicable federal and state law, and shall make such records available for inspection by the Board and its authorized agents, at any time and from time to time during normal business hours. The Adviser agrees that all records that it maintains for the Company are the property of the Company and shall surrender promptly to the Company any such records upon the Company’s request and upon termination of this Agreement pursuant to Section 9 , provided that the Adviser may retain a copy of such records.

 

The following provisions in this Section 1 shall apply for only so long as the shares of the Company are not listed on a national securities exchange.

 

(h) Administrator . The Adviser shall, upon request by an official or agency administering the securities laws of a state, province, or commonwealth (an “ State Administrator ”), submit to such State Administrator the reports and statements required to be distributed to Company stockholders pursuant to this Agreement, the Registration Statement and applicable federal and state law.

 

(i) Fiduciary Duty : It is acknowledged that the Adviser shall have a fiduciary responsibility for the safekeeping and use of all funds and assets of the Company, whether or not in the Adviser’s immediate possession or control. The Adviser shall not employ, or permit another to employ, such funds or assets in any manner except for the exclusive benefit of the Company. The Adviser shall not, by entry into an agreement with any stockholder of the Company or otherwise, contract away the fiduciary obligation owed to the Company and the Company stockholders under common law. 

 

2. Company’s Responsibilities and Expenses Payable by the Company .

 

(a) Costs . Subject to the limitations on reimbursement of the Adviser as set forth in Section 2(b) below, the Company, either directly or through reimbursement to the Adviser, shall bear all other costs and expenses of its operations and transactions, including (without limitation) fees and expenses relating to: expenses deemed to be “organization and offering expenses” of the Company for purposes of Conduct Rule 2310(a)(12) of the Financial Industry Regulatory Authority (for purposes of this Agreement, such expenses, exclusive of commissions, the dealer manager fee and any discounts, are hereinafter referred to as “Organization and Offering Expenses”); amounts paid to third parties for administrative services; amounts paid to third party experts relating to the investigation and monitoring of the Company’s investments; the cost of calculating the Company’s net asset value; the cost of effecting sales and repurchases of shares of the Company’s common stock and other securities; management and incentive fees payable pursuant to the investment advisory agreement; fees payable to third parties relating to, or associated with, making investments and valuing investments (including third-party valuation firms), transfer agent and custodial fees, fees and expenses associated with marketing efforts (including attendance at investment conferences and similar events); federal and state registration fees; any exchange listing fees; federal, state and local taxes; independent directors’ fees and expenses; brokerage commissions; costs of proxy statements; stockholders’ reports and notices; costs of preparing government filings, including periodic and current reports with the SEC; fidelity bond, liability insurance and other insurance premiums; and printing, mailing, independent accountants and outside legal costs.

 

The following provisions in this Section 2 shall apply for only so long as the shares of the Company are not listed on a national securities exchange.

 

Notwithstanding the foregoing, the Company shall not be liable for Organization and Offering Expenses to the extent that Organization and Offering Expenses, together with all prior Organization Offering Expenses, exceeds the greater of $125,000 and 1.5% of the aggregate gross proceeds from the offering of the Company’s securities (the “Offering Proceeds”). More specifically, the Company shall be obligated to reimburse the Adviser for all current and past Organization and Offering Expenses paid by the Adviser and not already reimbursed by the Company (the “Reimbursable O&O Expenses”) as follows:

 

(i) if the Offering Proceeds are $8,333,333.33 or less, the Company shall reimburse the Adviser for such Reimbursable O&O Expenses to the extent that the Reimbursable O&O Expenses, together with all past Organization and Offering Expenses for which the Adviser has received reimbursement, does not exceed $125,000; or

 

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(ii) if the Offering Proceeds exceed $8,333,333.33, the Company shall reimburse the Adviser for such Reimbursable O&O Expenses to the extent that the Reimbursable O&O Expenses, together with all past Organization and Offering Expenses for which the Adviser has received reimbursement, does not exceed an amount equal to 1.5% of the Offering Proceeds or a maximum reimbursement of $22,500,000, assuming the maximum offering size is $1,500,000,000.

 

(b) Limitations on Reimbursement of Expenses . In addition to the compensation paid to the Adviser pursuant to Section 3 , the Company shall reimburse the Adviser for all expenses of the Company incurred by the Adviser as well as the actual cost of goods and services used for or by the Company and obtained from entities not affiliated with the Adviser. The Adviser may be reimbursed for the administrative services performed by it on behalf of the Company; provided, however, the reimbursement shall be an amount equal to the lower of the Adviser’s actual cost or the amount the Company would be required to pay third parties for the provision of comparable administrative services in the same geographic location; and provided, further, that such costs are reasonably allocated to the Company on the basis of assets, revenues, time records or other method conforming with generally accepted accounting principles. No reimbursement shall be permitted for services for which the Adviser is entitled to compensation by way of a separate fee. Excluded from the allowable reimbursement shall be:

 

(i) rent or depreciation, utilities, capital equipment, and other administrative items of the Adviser; and

 

(ii) salaries, fringe benefits, travel expenses and other administrative items incurred or allocated to any executive officer or board member of the Adviser (or any individual performing such services) or a holder of 10% or greater equity interest in the Adviser (or any person having the power to direct or cause the direction of the Adviser, whether by ownership of voting securities, by contract or otherwise).

 

(c) Periodic Reimbursement . Expenses incurred by the Adviser on behalf of the Company and payable pursuant to this Section 2 shall be reimbursed no less than monthly to the Adviser. The Adviser shall prepare a statement documenting the expenses of the Company and the calculation of the reimbursement and shall deliver such statement to the Company prior to full reimbursement.

 

3. Compensation of the Adviser . The Company agrees to pay, and the Adviser agrees to accept, as compensation for the services provided by the Adviser hereunder, a base management fee (“ Base Management Fee ”) and an incentive fee (“ Incentive Fee ”) as hereinafter set forth. The Adviser may agree to temporarily or permanently waive, in whole or in part, the Base Management Fee and/or the Incentive Fee.

 

(a) Base Management Fee . The Base Management Fee shall be calculated at an annual rate of one and one half percent (1.5%) of the Company’s average gross assets. The Base Management Fee shall be payable quarterly in arrears, and shall be calculated based on the average value of the Company’s gross assets at the end of the two most recently completed calendar quarters. All or any part of the Base Management Fee not taken as to any quarter shall be deferred without interest and may be taken in such other quarter as the Adviser shall determine. The Base Management Fee for any partial month or quarter shall be appropriately pro rated.

 

(b) Incentive Fee. The Incentive Fee shall consist of two parts, as follows:

 

(i) The first part, referred to as the “Incentive Fee on Income,” shall be calculated and payable quarterly in arrears based on the Company’s “Pre-Incentive Fee Net Investment Income” for the immediately preceding quarter. The payment of the Incentive Fee on Income shall be subject to payment of a preferred return to investors each quarter, expressed as a quarterly rate of return on the value of the Company’s net assets at the end of the most recently completed calendar quarter, of 1.75% (7.00% annualized), subject to a “catch up” feature (as described below). The calculation of the Incentive Fee on Income for each quarter is as follows:

 

(A) No Incentive Fee on Income shall be payable to the Adviser in any calendar quarter in which the Company’s Pre-Incentive Fee Net Investment Income does not exceed the preferred return rate of 1.75% or 7.00% annualized (the “Preferred Return”) on net assets;

 

(B) 100% of the Company’s Pre-Incentive Fee Net Investment Income, if any, that exceeds the preferred return but is less than or equal to 2.1875% in any calendar quarter (8.75% annualized) shall be payable to the Adviser. This portion of the company’s Incentive Fee on Income is referred to as the “catch up” and is intended to provide the Adviser with an incentive fee of 20% on all of the Company’s Pre-Incentive Fee Net Investment Income when the Company’s Pre-Incentive Fee Net Investment Income reaches 2.1875% (8.75% annualized) in any calendar quarter; and

 

(C) For any quarter in which the Company’s Pre-Incentive Fee Net Investment Income exceeds 2.1875% (8.75% annualized), the Incentive Fee on Income shall equal 20% of the amount of the Company’s Pre-Incentive Fee Net Investment Income, as the Preferred Return and catch-up will have been achieved.

 

(ii) The second part of the incentive fee, referred to as the “Incentive Fee on Capital Gains During Operations,” shall be an incentive fee on capital gains earned on liquidated investments from the portfolio during operations prior to the liquidation of the Company and shall be determined and payable in arrears as of the end of each calendar year (or upon termination of the investment advisory agreement, if earlier). This fee shall equal 20.0% of the Company’s incentive fee capital gains, which shall equal the Company’s realized capital gains on a cumulative basis from inception, calculated as of the end of each calendar year, computed net of all realized capital losses and unrealized capital depreciation on a cumulative basis, less the aggregate amount of any previously paid capital gain incentive fees.

 

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(iii) For purposes of Section 3(b),” Pre-Incentive Fee Net Investment Income ” means interest income, dividend income and any other income (including any other fees, other than fees for providing managerial assistance, such as commitment, origination, structuring, diligence and consulting fees or other fees that the Company receives from portfolio companies) accrued during the calendar quarter, minus the Company’s operating expenses for the quarter (including the base management fee, expenses payable under the administration agreement and any interest expense and dividends paid on any issued and outstanding preferred stock, but excluding the incentive fee). Pre-Incentive Fee Net Investment Income includes, in the case of investments with a deferred interest feature (such as original issue discount debt instruments with payment-in-kind interest and zero coupon securities), accrued income that the Company has not yet received in cash. Pre-Incentive Fee Net Investment Income does not include any realized capital gains, realized capital losses or unrealized capital appreciation or depreciation. 

 

(iv) Notwithstanding the foregoing, in no event will the Adviser’s compensation on the basis of a share of capital gains exceed 20% of the realized capital gains upon the funds of the Company over the life of the Company, computed net of all realized capital losses and unrealized capital depreciation.

 

4. Covenants of the Adviser .

 

(a) Adviser Status . The Adviser covenants that it will register as an investment adviser under the Advisers Act and will maintain such registration. The Adviser agrees that its activities will at all times be in compliance in all material respects with all applicable federal and state laws governing its operations and investments.

 

The following provisions in this Section 4 shall apply for only so long as the shares of the Company are not listed on a national securities exchange.

 

(b) Reports to Stockholders . The Adviser shall prepare or shall cause to be prepared and distributed to stockholders during each year the following reports of the Company (either included in a periodic report filed with the SEC or distributed in a separate report):

 

(i) Quarterly Reports . Within 60 days of the end of each quarter, a report containing the same financial information contained in the Company’s Quarterly Report on Form 10-Q filed by the Company under the Securities Exchange Act of 1934, as amended.

 

(ii) Annual Report . Within 120 days after the end of the Company’s fiscal year, an annual report containing:

 

(A) A balance sheet as of the end of each fiscal year and statements of income, equity, and cash flow, for the year then ended, all of which shall be prepared in accordance with generally accepted accounting principles and accompanied by an auditor’s report containing an opinion of an independent certified public accountant;

 

(B) A report of the activities of the Company during the period covered by the report; 

 

(C) Where forecasts have been provided to the Company’s stockholders, a table comparing the forecasts previously provided with the actual results during the period covered by the report;

 

(D) A report setting forth distributions by the Company for the period covered thereby and separately identifying distributions from (i) cash flow from operations during the period; (ii) cash flow from operations during a prior period which have been held as reserves; and (iii) proceeds from disposition of Company assets.

 

(iii) Previous Reimbursement Reports . The Adviser shall prepare or shall cause to be prepared a report, prepared in accordance with the American Institute of Certified Public Accountants United States Auditing Standards relating to special reports, and distributed to stockholders not less than annually, containing an itemized list of the costs reimbursed to the Adviser pursuant to Section 2(b) for the previous fiscal year. The special report shall at a minimum provide:

 

(A) A review of the time records of individual employees, the costs of whose services were reimbursed; and

 

(B) A review of the specific nature of the work performed by each such employee.

 

(iv) Proposed Reimbursement Reports . The Adviser shall prepare or shall cause to be prepared a report containing an itemized estimate of all proposed expenses for which it shall receive reimbursements pursuant to Section 2(b) of this Agreement for the next fiscal year, together with a breakdown by year of such expenses reimbursed in each of the last five public programs formed by the Adviser.

 

(v) Proposed Federal Income Tax Returns. Within 75 days after the end of the Company’s fiscal year, all information necessary for Stockholders’ to prepare their federal income tax returns.

 

(c) Reports to State Administrators . The Adviser shall, upon written request of any State Administrator, submit any of the reports and statements to be prepared and distributed by it pursuant to this Section 4 to such State Administrator.

 

(d) Reserves . In performing its duties hereunder, the Adviser shall cause the Company to provide for adequate reserves for normal replacements and contingencies (but not for payment of fees payable to the Adviser hereunder) by causing the Company to retain a reasonable percentage of proceeds from offerings and revenues.

 

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(e) Recommendations Regarding Reviews . From time to time and not less than quarterly, the Adviser must review the Company’s accounts to determine whether cash distributions are appropriate. The Company may, subject to authorization by the Board of Directors, distribute pro rata to the stockholders funds received by the Company which the Adviser deems unnecessary to retain in the Company. 

 

(f) Temporary Investments . The Adviser shall, in its sole discretion, temporarily place proceeds from offerings by the Company into short term, highly liquid investments which, in its reasonable judgment, afford appropriate safety of principal during such time as it is determining the composition and allocation of the portfolio of the Company and the nature, timing and implementation of any changes thereto pursuant to Section 1(b ); provided however, that the Adviser shall be under no fiduciary obligation to select any such short-term, highly liquid investment based solely on any yield or return of such investment. The Adviser shall cause any proceeds of the offering of Company securities not committed for investment within the later of two years from the date of effectiveness of the Registration Statement or one year from termination of the offering, unless a longer period is permitted by the applicable Administrator, to be paid as a distribution to the stockholders of the Company as a return of capital without deduction of Front End Fees (as defined below).

 

5. Brokerage Commissions . Limitations on Fees; Period of Offering; Assessments

 

(a) Brokerage Commissions . The Adviser is hereby authorized, to the fullest extent now or hereafter permitted by law, to cause the Company to pay a member of a national securities exchange, broker or dealer an amount of commission for effecting a securities transaction in excess of the amount of commission another member of such exchange, broker or dealer would have charged for effecting that transaction, if the Adviser determines in good faith, taking into account such factors as price (including the applicable brokerage commission or dealer spread), size of order, difficulty of execution, and operational facilities of the firm and the firm’s risk and skill in positioning blocks of securities, that such amount of commission is reasonable in relation to the value of the brokerage and/or research services provided by such member, broker or dealer, viewed in terms of either that particular transaction or its overall responsibilities with respect to the Company’s portfolio, and constitutes the best net results for the Company.

 

The following provisions in this Section 5 shall apply for only so long as the shares of the Company are not listed on a national securities exchange.

 

(b) Limitations . Notwithstanding anything herein to the contrary:

 

(i) All fees and expenses paid by any party for any services rendered to organize the Company and to acquire assets for the Company (“Front End Fees”) shall be reasonable and shall not exceed 18% of the gross offering proceeds, regardless of the source of payment. Any reimbursement to the Adviser or any other person for deferred organizational and offering expenses, including any interest thereon, if any, will be included within this 18% limitation.

 

(ii) The Adviser shall commit at least eighty-two percent (82%) of the gross offering proceeds towards the investment or reinvestment of assets and reserves as set forth in Section 4(d) above on behalf of the Company. The remaining proceeds may be used to pay Front End Fees. 

 

6. Other Activities of the Adviser . The services of the Adviser to the Company are not exclusive, and the Adviser may engage in any other business or render similar or different services to others including, without limitation, the direct or indirect sponsorship or management of other investment based accounts or commingled pools of capital, however structured, having investment objectives similar to those of the Company, so long as its services to the Company hereunder are not impaired thereby, and nothing in this Agreement shall limit or restrict the right of any manager, partner, member (including its members and the owners of its members), officer or employee of the Adviser to engage in any other business or to devote his or her time and attention in part to any other business, whether of a similar or dissimilar nature, or to receive any fees or compensation in connection therewith (including fees for serving as a director of, or providing consulting services to, one or more of the Company’s portfolio companies, subject to applicable law). The Adviser assumes no responsibility under this Agreement other than to render the services called for hereunder. It is understood that directors, officers, employees and stockholders of the Company are or may become interested in the Adviser and its affiliates, as directors, officers, employees, partners, stockholders, members, managers or otherwise, and that the Adviser and directors, officers, employees, partners, stockholders, members and managers of the Adviser and its affiliates are or may become similarly interested in the Company as stockholders or otherwise.

 

7. Responsibility of Dual Directors, Officers and/or Employees . If any person who is a manager, partner, member, officer or employee of the Adviser is or becomes a director, officer and/or employee of the Company and acts as such in any business of the Company, then such manager, partner, member, officer and/or employee of the Adviser shall be deemed to be acting in such capacity solely for the Company, and not as a manager, partner, member, officer or employee of the Adviser or under the control or direction of the Adviser, even if paid by the Adviser.

 

8. Indemnification .

 

(a) Indemnification . The Adviser (and its officers, managers, partners, members (and their members, including the owners of their members), agents, employees, controlling persons and any other person or entity affiliated with the Adviser) shall not be liable to the Company for any action taken or omitted to be taken by the Adviser in connection with the performance of any of its duties or obligations under this Agreement or otherwise as an investment advisor of the Company (except to the extent specified in Section 36(b) of the Investment Company Act concerning loss resulting from a breach of fiduciary duty (as the same is finally determined by judicial proceedings) with respect to the receipt of compensation for services, and the Company shall indemnify, defend and protect the Adviser (and its officers, managers, partners, members (and their members, including the owners of their members), agents, employees, controlling persons and any other person or entity affiliated with the Adviser, each of whom shall be deemed a third party beneficiary hereof) (collectively, the “ Indemnified Parties ”) and hold them harmless from and against all damages, liabilities, costs and expenses (including reasonable attorneys’ fees and amounts reasonably paid in settlement) incurred by the Indemnified Parties in or by reason of any pending, threatened or completed action, suit, investigation or other proceeding (including an action or suit by or in the right of the Company or its security holders) arising out of or otherwise based upon the performance of any of the Adviser’s duties or obligations under this Agreement or otherwise as an investment adviser of the Company, to the extent such damages, liabilities, costs and expenses are not fully reimbursed by insurance, and to the extent that such indemnification would not be inconsistent with the laws of the State of Maryland, the Investment Company Act, the charter of the Company. Notwithstanding the preceding sentence of this Section 8 to the contrary, nothing contained herein shall protect or be deemed to protect the Indemnified Parties against or entitle or be deemed to entitle the Indemnified Parties to indemnification in respect of, any liability to the Company or its security holders to which the Indemnified Parties would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of the Adviser’s duties or by reason of the reckless disregard of the Adviser’s duties and obligations under this Agreement.

 

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The following provisions in this Section 8 shall apply for only so long as the shares of the Company are not listed on a national securities exchange.

 

(b) Limitations on Indemnification . Notwithstanding Section 8(a) to the contrary:

 

(i) the indemnification referred to in Section 8(a) shall only be provided to the extent that such indemnification would not be inconsistent the provisions of Section II.G of the Omnibus Guidelines published by the North American Securities Administrators Association on March 29, 1992, as it may be amended from time to time; and

 

(ii) the Company shall not provide for indemnification of the Indemnified Parties for any liability or loss suffered by the Indemnified Parties, nor shall the Company provide that any of the Indemnified Parties be held harmless for any loss or liability suffered by the Company, unless all of the following conditions are met:

 

(A) the Indemnified Party has determined, in good faith, that the course of conduct which caused the loss or liability was in the best interests of the Company;

 

(B) the Indemnified Party was acting on behalf of or performing services for the Company;

 

(C) such liability or loss was not the result of negligence or misconduct by the Indemnified Party; and

 

(D) such indemnification or agreement to hold harmless is recoverable only out of the Company’s net assets and not from stockholders.

 

Furthermore, the Indemnified Party shall not be indemnified for any losses, liabilities or expenses arising from or out of an alleged violation of federal or state securities laws unless one or more of the following conditions are met:

 

(A) there has been a successful adjudication on the merits of each count involving alleged securities law violations as to the particular indemnitee;

 

(B) such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction as to the particular indemnitee; or

 

(C) a court of competent jurisdiction approves a settlement of the claims against a particular indemnitee and finds that indemnification of the settlement and related costs should be made, and the court of law considering the request for indemnification has been advised of the position of the SEC and the published position of any state securities regulatory authority in which securities of the Company were offered or sold as to indemnification for violations of securities laws.

 

(c) Advancement of Funds . To the maximum extent permitted by law, the Company shall be permitted to advance funds to the Indemnified Party for legal expenses and other costs incurred as a result of any legal action for which indemnification is being sought only if all of the following conditions are met:

 

(i) The legal action relates to acts or omissions with respect to the performance of duties or services on behalf of the Company;

 

(ii) The legal action is initiated by a third party who is not a Company stockholder, or the legal action is initiated by a Company stockholder and a court of competent jurisdiction specifically approves such advancement; and

 

(iii) The Indemnified Party undertakes to repay the advanced funds to the Company, together with the applicable legal rate of interest thereon, in cases in which the Indemnified Party is not found to be entitled to indemnification.

 

9. Effectiveness, Duration and Termination of Agreement .

 

(a) Term and Effectiveness . This Agreement shall become effective as of the date first written above. This Agreement shall remain in effect for two years, and thereafter shall continue automatically for successive annual periods, provided that such continuance is specifically approved at least annually by (i) the vote of the Board, or by the vote of a majority of the outstanding voting securities of the Company and (ii) the vote of a majority of the Company’s directors who are not parties to this Agreement or “interested persons” (as such term is defined in Section 2(a)(19) of the Investment Company Act) of any such party, in accordance with the requirements of the Investment Company Act.

 

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(b) Termination . This Agreement may be terminated at any time, without the payment of any penalty, (a) by the Company upon 60 days’ written notice to the Adviser, (i) upon the vote of a majority of the outstanding voting securities of the Company, or (ii) by the vote of the Company’s independent directors, or (b) by the Adviser upon 120 days’ written notice to the Company. This Agreement shall automatically terminate in the event of its “assignment” (as such term is defined for purposes of Section 15(a)(4) of the Investment Company Act). The provisions of Section 8 of this Agreement shall remain in full force and effect, and the Adviser shall remain entitled to the benefits thereof, notwithstanding any termination of this Agreement. Further, notwithstanding the termination or expiration of this Agreement as aforesaid, the Adviser shall be entitled to any amounts owed to it under Section 3 through the date of termination or expiration and Section 8 shall continue in force and effect and apply to the Adviser and its representatives as and to the extent applicable.

 

The following provisions in this Section 9 shall apply for only so long as the shares of the Company are not listed on a national securities exchange.

 

(c) Payments to and Duties of Adviser Upon Termination .

 

(i) After the termination of this Agreement, the Adviser shall not be entitled to compensation for further services provided hereunder except that it shall be entitled to receive from the Company within 30 days after the effective date of such termination all unpaid reimbursements and all earned but unpaid fees payable to the Adviser prior to termination of this Agreement. If the Company and the Adviser cannot agree on the amount of such reimbursements and fees, the parties will submit to binding arbitration. 

 

(ii) The Adviser shall promptly upon termination:

 

(A) Deliver to the Board a full accounting, including a statement showing all payments collected by it and a statement of all money held by it, covering the period following the date of the last accounting furnished to the Board;

 

(B) Deliver to the Board all assets and documents of the Company then in custody of the Adviser; and

 

(C) Cooperate with the Company to provide an orderly management transition.

  

(d) Miscellaneous Matters . Without the approval of holders of a majority of the shares entitled to vote on the matter, the Adviser shall not: (i) amend the investment advisory agreement except for amendments that do not adversely affect the interests of the stockholders; (ii) voluntarily withdraw as the Adviser unless such withdrawal would not affect the tax status of the Company and would not materially adversely affect the stockholders; (iii) appoint a new Adviser; (iv) sell all or substantially all of the Company’s assets other than in the ordinary course of the Company’s business; or (v) cause the merger or other reorganization of the Company. In the event that the Adviser should withdraw pursuant to (ii) above, the withdrawing Adviser shall pay all expenses incurred as a result of its withdrawal. The Company may terminate the Adviser’s interest in the Company’s revenues, expenses, income, losses, distributions and capital by payment of an amount equal to the then present fair market value of the terminated Adviser’s interest, determined by agreement of the terminated Adviser and the Company. If the Company and the Adviser cannot agree upon such amount, then such amount will be determined in accordance with the then current rules of the American Arbitration Association. The expenses of such arbitration shall be borne equally by the terminated Adviser and the Company. The method of payment to the terminated Adviser must be fair and must protect the solvency and liquidity of the Company.

 

(e) With respect to any shares owned by the Adviser, the Adviser may not vote or consent on matters submitted to the Stockholders regarding the removal of the Adviser or regarding any transaction between the Company and the Adviser. In determining the existence of the requisite percentage of shares necessary to approve a matter on which the Adviser may not vote or consent, any shares owned by the Adviser shall not be included.

 

10. Conflicts of Interests and Prohibited Activities . The following provisions in this Section 10 shall apply for only so long as the shares of the Company are not listed on a national securities exchange. 

 

(a) No Exclusive Agreement . The Adviser is not hereby granted or entitled to an exclusive right to sell or exclusive employment to sell assets for the Company.

 

(b) Rebates, Kickbacks and Reciprocal Arrangements .

 

(i) The Adviser agrees that it shall not (A) receive or accept any rebate, give-up or similar arrangement that is prohibited under applicable federal or state securities laws, (B) participate in any reciprocal business arrangement that would circumvent provisions of applicable federal or state securities laws governing conflicts of interest or investment restrictions, or (C) enter into any agreement, arrangement or understanding that would circumvent the restrictions against dealing with affiliates or promoters under applicable federal or state securities laws.

 

(ii) The Adviser agrees that it shall not directly or indirectly pay or award any fees or commissions or other compensation to any person or entity engaged to sell the Company’s stock or give investment advice to a potential stockholder; provided, however, that this subsection shall not prohibit the payment of a registered broker-dealer or other properly licensed agent from sales commissions for selling or distributing the Company’s common stock.

 

(c) Commingling . The Adviser covenants that it shall not permit or cause to be permitted the Company’s funds from being commingled with the funds of any other entity. Nothing in this Subsection 10(c) shall prohibit the Adviser from establishing a master fiduciary account pursuant to which separate sub-trust accounts are established for the benefit of affiliated programs, provided that the Company’s funds are protected from the claims of other programs and creditors of such programs.

 

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11. Notices . Any notice under this Agreement shall be given in writing, addressed and delivered or mailed, postage prepaid, to the other party at its principal office.

 

12. Amendments . This Agreement may be amended by mutual consent. To the extent required by the Investment Company Act, material amendments of this Agreement will require the approval of a majority of the outstanding voting securities of the Company.

 

13. Certain Definitions . For the purposes of this Agreement, the “approval of a majority of the outstanding voting securities” of the Fund means the affirmative vote, at a duly called and held meeting of shareholders of BDCA, (a) of the holders of 67% or more of the shares of BDCA present (in person or by proxy) and entitled to vote at the meeting, if the holders of more than 50% of the outstanding shares of BDCA entitled to vote at the meeting are present in person or by proxy or (b) of the holders of more than 50% of the outstanding shares of BDCA entitled to vote at the meeting, whichever is less.

 

For the purposes of this Agreement, the term “approve at least annually” will be construed in a manner consistent with the Investment Company Act and any applicable guidance or interpretation of the Securities Exchange Commission or its staff.

 

14. Entire Agreement; Governing Law . This Agreement contains the entire agreement of the parties and supersedes all prior agreements, understandings and arrangements with respect to the subject matter hereof. Notwithstanding the place where this Agreement may be executed by any of the parties hereto, this Agreement shall be construed in accordance with the laws of the State of New York. For so long as the Company is regulated as a business development company under the Investment Company Act, this Agreement shall also be construed in accordance with the applicable provisions of the Investment Company Act. In such case, to the extent the applicable laws of the State of New York, or any of the provisions herein, conflict with the provisions of the Investment Company Act, the latter shall control.

 

 

 

 

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IN WITNESS WHEREOF, the parties hereto have caused this Investment Advisory and Management Services Agreement to be duly executed on the date above written.

 

  BUSINESS DEVELOPMENT CORPORATION OF AMERICA
   
   
  By:        /s/ Richard J. Byrne
  Name: Richard J. Byrne
  Title:   Chief Executive Officer and President
   

 

[Signature Page to Investment Advisory and Management Services Agreement]

 

 

   
   
 

BDCA ADVISER, LLC

 

By: BSP Acquisition I, LLC, its sole member

   
   
  By:        /s/ Thomas J. Gahan
  Name: Thomas J. Gahan
  Title:   Chief Executive Officer

 

[Signature Page to Investment Advisory and Management Services Agreement]

 

 

Exhibit 99.2

 

ADMINISTRATION AGREEMENT

 

This ADMINISTRATION AGREEMENT (the “ Agreement ”) made as of November 1, 2016 by and between Business Development Corporation of America, a Maryland corporation (the “ Corporation ”), and Benefit Street Partners L.L.C., a Delaware limited liability company (the “ Administrator ”).

 

WITNESSETH:

 

WHEREAS, the Corporation is a closed-end management investment company that has elected to be treated as a business development company under the Investment Company Act of 1940, as amended (the “ Investment Company Act ”);

 

WHEREAS, the Corporation desires to retain the Administrator to provide administrative services to the Corporation in the manner and on the terms hereinafter set forth; and

 

WHEREAS, the Administrator is willing to provide administrative services to the Corporation on the terms and conditions hereafter set forth.

 

NOW, THEREFORE, in consideration of the premises and the covenants hereinafter contained and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Corporation and the Administrator hereby agree as follows:

 

1.        Duties of the Administrator

 

(a) Appointment of Administrator . The Corporation hereby appoints the Administrator to act as administrator of the Corporation, and to furnish, or arrange for others to furnish, the administrative services, personnel and facilities described below, subject to review by and the overall control of the Board of Directors of the Corporation (the “ Board ”), for the period and on the terms and conditions set forth in this Agreement. The Administrator hereby accepts such appointment and agrees during such period to render, or arrange for the rendering of, such services and to assume the obligations herein set forth subject to the reimbursement of costs and expenses provided for below. The Administrator and any such other persons providing services arranged for by the Administrator shall for all purposes herein be deemed to be independent contractors and shall, unless otherwise expressly provided or authorized herein, have no authority to act for or represent the Corporation in any way or otherwise be deemed agents of the Corporation.

 

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(b) Services . The Administrator shall perform (or oversee, or arrange for, the performance of) the administrative services necessary for the operation of the Corporation. Without limiting the generality of the foregoing, the Administrator shall provide the Corporation with office facilities, equipment, clerical, bookkeeping and record keeping services at such facilities and such other services as the Administrator, subject to review by the Board, shall from time to time determine to be necessary or useful to perform its obligations under this Agreement. The Administrator shall also, on behalf of the Corporation, conduct relations with custodians, depositories, transfer agents, dividend disbursing agents, other stockholder servicing agents, accountants, attorneys, underwriters, brokers and dealers, corporate fiduciaries, insurers, banks and such other persons in any such other capacity deemed to be necessary or desirable. The Administrator shall make reports to the Board of its performance of obligations hereunder and furnish advice and recommendations with respect to such other aspects of the business and affairs of the Corporation as it shall determine to be desirable or as requested by the Board; provided that nothing herein shall be construed to require the Administrator to, and the Administrator shall not provide any advice or recommendation relating to the securities and other assets that the Corporation should purchase, retain or sell or any other investment advisory services to the Corporation. The Administrator shall be responsible for the financial and other records that the Corporation is required to maintain and shall prepare reports to stockholders, and reports and other materials filed with the Securities and Exchange Commission (the “ SEC ”) or any other regulatory authority, including, but not limited to, current reports on Form 8-K, quarterly reports on Form 10-Q, annual reports on Form 10-K and proxy or information statements to stockholders. If requested by the Corporation, the Administrator will provide on the Corporation’s behalf significant managerial assistance to those portfolio companies to which the Corporation is required to provide such assistance. In addition, the Administrator will assist the Corporation in determining and publishing the Corporation’s net asset value, overseeing the preparation and filing of the Corporation’s tax returns, and the printing and dissemination of reports to stockholders of the Corporation, and generally overseeing the payment of the Corporation’s expenses and the performance of administrative and professional services rendered to the Corporation by others.

 

2.         Records

 

The Administrator agrees to maintain and keep all books, accounts and other records of the Corporation that relate to activities performed by the Administrator hereunder and, if required by the Investment Company Act, will maintain and keep such books, accounts and records in accordance with that Act. In compliance with the requirements of Rule 31a-3 under the Investment Company Act, the Administrator agrees that all records that it maintains for the Corporation shall at all times remain the property of the Corporation, shall be readily accessible during normal business hours, and shall be promptly surrendered upon the termination of the Agreement or otherwise on written request. The Administrator further agrees that all records which it maintains for the Corporation pursuant to Rule 31a-1 under the Investment Company Act will be preserved for the periods prescribed by Rule 31a-2 under the Investment Company Act unless any such records are earlier surrendered as provided above. Records shall be surrendered in usable machine-readable form. The Administrator shall have the right to retain copies of such records subject to observance of its confidentiality obligations under this Agreement.

 

3.         Confidentiality

 

The parties hereto agree that each shall treat confidentially all information provided by each party to the other regarding its business and operations. All confidential information provided by a party hereto, including nonpublic personal information of natural persons pursuant to Regulation S-P of the SEC, shall be used by any other party hereto solely for the purpose of rendering services pursuant to this Agreement and, except as may be required in carrying out this Agreement, shall not be disclosed to any third party without the prior consent of such providing party. The foregoing shall not be applicable to any information that is publicly available when provided or thereafter becomes publicly available other than through a breach of this Agreement, or that is required to be disclosed by any regulatory authority, any authority or legal counsel of the parties hereto, by judicial or administrative process or otherwise by applicable law or regulation.

 

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4.         Compensation; Allocation of Costs and Expenses

 

(a) In full consideration of the provision of the services of the Administrator, the Corporation shall reimburse the Administrator for the costs and expenses incurred by the Administrator in performing its obligations and providing personnel and facilities hereunder, including the costs and expenses charged by any sub-administrator that may be retained by the Administrator to provide services to the Corporation or on the Administrator’s behalf.

 

(b) The Corporation will bear all costs and expenses that are incurred in its operation, administration, and transactions and not specifically assumed by the Corporation’s investment advisor (the “ Adviser ”), pursuant to that certain Investment Management Agreement, dated as of November 1, 2016, by and between the Corporation and the Adviser (the “Advisory Agreement”). Costs and expenses to be borne by the Corporation include, but are not limited to, those relating to: expenses deemed to be “organization and offering expenses” of the Company for purposes of Conduct Rule 2310(a)(12) of the Financial Industry Regulatory Authority (for purposes of this Agreement, such expenses, exclusive of commissions, the dealer manager fee and any discounts, are hereinafter referred to as “Organization and Offering Expenses”); expenses incurred by the Adviser and payable to third parties, including agents, consultants and other advisors, in monitoring the financial and legal affairs of the Corporation, and news and quotation subscriptions; the cost of calculating the Corporation’s net asset value; the cost of effecting sales and repurchases of shares of the Company’s common stock and other securities; management and incentive fees payable pursuant to the Advisory Agreement; fees payable to third parties, including agents, consultants and other advisors, relating to, or associated with, making investments, and, if necessary, enforcing its rights, and valuing investments (including third-party valuation firms); placement agent fees and expenses, rating agency expenses; fees to arrange debt financings for the Corporation; distributions on the Corporation’s shares; administration fees payable under this Agreement; the allocated costs incurred by the Administrator in providing managerial assistance to those portfolio companies that request it; transfer agent and custodial fees; fees and expenses associated with marketing efforts (including attendance at investment conferences and similar events); federal and state registration fees; any exchange listing fees; federal, state, local, and other taxes; independent directors’ fees and expenses; brokerage commissions; costs of proxy statements, stockholders’ reports and notices; costs of preparing government filings, including periodic and current reports with the SEC; the Corporation’s fidelity bond, directors and officers/errors and omissions liability insurance, and any other insurance premiums; indemnification payments; expenses relating to the development and maintenance of the Corporation’s website; other operations and technology costs; direct costs and expenses of administration, including printing, mailing, copying, telephone, fees of independent accountants and outside legal costs; and all other expenses incurred by the Corporation or the Administrator in connection with administering the Corporation’s business, including, but not limited to, payments under this Agreement based upon the Corporation’s allocable portion of the Administrator’s overhead in performing its obligations under this Agreement, including rent, travel and the allocable portion of the cost of the Corporation’s chief compliance officer and chief financial officer and their respective staffs, including tax professionals.

 

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5.         Limitation of Liability of the Administrator; Indemnification

 

The Administrator, its affiliates and their respective directors, officers, managers, partners, agents, employees, controlling persons, members, and any other person or entity affiliated with any of them including the Adviser, shall not be liable to the Corporation for any action taken or omitted to be taken by the Administrator in connection with the performance of any of its duties or obligations under this Agreement or otherwise as administrator for the Corporation, and the Corporation shall indemnify, defend and protect the Administrator (and its officers, managers, partners, agents, employees, controlling persons, members, and any other person or entity affiliated with the Administrator, including without limitation, the Adviser, each of whom shall be deemed a third party beneficiary hereof) (collectively, the “ Indemnified Parties ”), and hold them harmless from and against all damages, liabilities, costs and expenses (including reasonable attorneys’ fees and amounts reasonably paid in settlement) incurred by the Indemnified Parties in or by reason of any pending, threatened or completed action, suit, investigation or other proceeding (including an action or suit by or in the right of the Corporation or its security holders) arising out of or otherwise based upon the performance of any of the Administrator’s duties or obligations under this Agreement or otherwise as administrator for the Corporation. Notwithstanding the preceding sentence of this Section 5 to the contrary, nothing contained herein shall protect or be deemed to protect the Indemnified Parties against or entitle or be deemed to entitle the Indemnified Parties to indemnification in respect of, any liability to the Corporation or its security holders to which the Indemnified Parties would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of the Administrator’s duties or by reason of the reckless disregard of the Administrator’s duties and obligations under this Agreement (to the extent applicable, as the same shall be determined in accordance with the Investment Company Act and any interpretations or guidance by the SEC or its staff thereunder).

 

6.         Activities of the Administrator

 

The services of the Administrator to the Corporation are not to be deemed to be exclusive, and the Administrator and each other person providing services as arranged by the Administrator is free to render services to others. It is understood that directors, officers, employees and stockholders of the Corporation are or may become interested in the Administrator and its affiliates, as directors, officers, members, managers, employees, partners, stockholders or otherwise, and that the Administrator and directors, officers, members, managers, employees, partners and stockholders of the Administrator and its affiliates are or may become similarly interested in the Corporation as officers, directors, stockholders or otherwise.

 

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7.         Duration and Termination of this Agreement

 

(a) This Agreement shall remain in force with respect to the Corporation for two years from the date of effectiveness and thereafter continue from year to year, but only so long as such continuance is specifically approved at least annually by (i) the Board and (ii) a majority of the members of the Board who are not parties to this Agreement or “interested persons” (as defined in Section 2(a)(19) of the Investment Company Act) of any such party.

 

(b) This Agreement may be terminated at any time, without the payment of any penalty, by vote of the Board, or by the Administrator, upon 60 days’ written notice to the other party.

 

(c) This Agreement may not be assigned by a party without the consent of the other party.  The provisions of Section 3 and Section 5 of this Agreement shall remain in full force and effect, and the Administrator shall remain entitled to the benefits thereof, notwithstanding any termination of this Agreement.

 

8.         Amendments of this Agreement

 

This Agreement may be amended pursuant to a written instrument by mutual consent of the parties.

 

9.         Governing Law

 

This Agreement shall be construed in accordance with the laws of the State of New York and the applicable provisions of the Investment Company Act. To the extent that the applicable laws of the State of New York, or any of the provisions herein, conflict with the applicable provisions of the Investment Company Act, the latter shall control.

 

10.        Entire Agreement

 

This Agreement contains the entire agreement of the parties and supersedes all prior agreements, understandings and arrangements with respect to the subject matter hereof.

 

11.         Notices

 

All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service (with signature required), by facsimile, or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at their respective principal executive office addresses.

 

12.         Miscellaneous

 

The captions in this Agreement are included for convenience of reference only and in no way define or delimit any of the provisions hereof or otherwise affect their construction or effect. If any provision of this Agreement shall be held or made invalid by a court decision, statute, rule or otherwise, the remainder of this Agreement shall not be affected thereby. This Agreement shall be binding on, and shall inure to the benefit of the parties hereto and their respective successors.

  

13.         Counterparts

 

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This Agreement may be executed in counterparts by the parties hereto, each of which shall constitute an original counterpart, and all of which, together, shall constitute one Agreement.

 

 

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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.

 

 

  BUSINESS DEVELOPMENT CORPORATION OF AMERICA
     
  By: /s/ Richard J. Byrne
  Name: Richard J. Byrne
  Title: Chief Executive Officer and President
     
     
     
  BENEFIT STREET PARTNERS L.L.C.
     
  By: /s/ Thomas J. Gahan
  Name: Thomas J. Gahan
  Title: Chief Executive Officer

 

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Exhibit 99.3

 

     

 

 

Business Development Corporation of America Announces Appointment of

Benefit Street Partners as New Investment Adviser

 

Benefit Street Partners Brings Experienced Team of Investment Professionals and Institutional Credit

Platform to Support BDCA

 

NEW YORK – November 1, 2016 – Business Development Corporation of America (“BDCA” or the “Company”), a non-traded business development company, today announced that the Company has appointed an affiliate of Benefit Street Partners L.L.C. (“BSP”) as its new external advisor, effective immediately. The Company’s Board of Directors, including all of its non-interested directors, have unanimously approved BSP as the new advisor. The transaction was also approved by BDCA stockholders at the Company’s Special Meeting of Stockholders on October 28, 2016.

 

BSP is a leading credit-focused alternative asset management firm with over $17 billion in assets under management. BSP manages assets across a broad range of complementary credit strategies including high yield, levered loans, private / opportunistic debt, liquid credit, structured credit and commercial real estate debt. BSP has approximately 140 employees with over 80 investment professionals. BSP is in partnership with Providence Equity Partners L.L.C., a leading global private equity firm with a combined $50 billion in assets under management.

 

In connection with the closing of the transaction, the Company has appointed BSP’s President, Richard J. Byrne, as Chairman and Chief Executive Officer. In addition, the Company’s stockholders elected Ronald J. Kramer to the Board as an independent director. Peter M. Budko and Edward M. Weil, Jr., who were affiliated with the Company’s previous investment adviser, have resigned from the Board. As a result, the Board is currently comprised of four independent directors and one interested director.  In addition to the appointment of Mr. Byrne, Corinne D. Pankovcin will continue in her role as Chief Financial Officer and Treasurer of BDCA. Nearly all of the previous adviser’s employees will join BSP and be integrated into the BSP platform.

 

“I am very excited to announce the appointment of BSP as BDCA’s new advisor,” said Leslie D. Michelson, BDCA’s Lead Independent Director. “The Board is confident that BDCA will benefit greatly from BSP’s existing infrastructure, relationships, and talented team members. We look forward to their contributions in origination, underwriting and portfolio management, which we expect will improve performance on a risk-adjusted basis and reduce operating expenses. This change will help position the Company for a potential liquidity event at some point in the future. We would also like to thank Peter Budko, Michael Weil and our former management team, as well as its former adviser, AR Global, for their many contributions to BDCA.”

 

Mr. Byrne said, "We are thrilled to have the opportunity to leverage our proprietary sourcing network and credit expertise to enhance BDCA’s already strong platform and optimize its portfolio and performance. We believe BDCA will benefit from our platform’s ability to be a one-stop lending solution to middle market companies. We look forward to delivering meaningful value to BDCA’s stockholders.”

 

 

 

 

BSP brings a proven track record in combination with a large and experienced credit team led by Tom Gahan, Chief Executive Officer of BSP. BSP has delivered strong investment performance at its three flagship private debt funds and has deployed over $12 billion in its private debt strategy over its eight year history. Under BSP, BDCA’s new originations will primarily focus on senior secured loans (including first-lien, unitranche and second-lien loans) and to a lesser extent, mezzanine loans, unsecured loans and equity.

 

BDCA will continue to operate as a business development company under the same name, and stockholders will own the same amount and type of shares in BDCA.

 

Houlihan Lokey served as financial advisor to BSP and Ropes & Gray LLP served as legal counsel to BSP.

 

About Benefit Street Partners

 

Benefit Street Partners is a leading credit-focused alternative asset management firm with over $17 billion in assets under management. BSP manages assets across a broad range of complementary credit strategies including high yield, levered loans, private / opportunistic debt, liquid credit, structured credit and commercial real estate debt. BSP is in partnership with Providence Equity Partners, a leading global private equity firm with a combined $50 billion in assets under management. The BSP platform was established in 2008 and is based in New York. For further information, please visit www.benefitstreetpartners.com.

 

About BDCA

 

BDCA is a non-traded business development company that primarily invests in senior secured loans, and to a lesser extent, mezzanine loans, unsecured loans and equity of private middle-market companies. As of June 30, 2016, BDCA had $2.6 billion of total assets. BDCA is managed by its investment adviser, BDCA Adviser, LLC, an affiliate of Benefit Street Partners L.L.C.

 

MEDIA CONTACTS

 

Business Development Corporation of America

Investor Relations

866-902-0063

 

Benefit Street Partners

Andrew Cole/Kelsey Markovich

212-687-8080

prov-svc@sardverb.com