Table of Contents

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 10-Q

(Mark One)

x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended September 30, 2016

OR

 

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

COMMISSION FILE NUMBER: 814-01054

CM FINANCE INC

(Exact Name of Registrant as Specified in Its Charter)

 

Maryland   46-2883380

(State or other Jurisdiction of

Incorporation or Organization)

 

(I.R.S. Employer

Identification No.)

601 Lexington Avenue

26th Floor

New York, NY 10022

(Address of Principal Executive Offices) (Zip Code)

(212) 257-5199

(Registrant’s Telephone Number, Including Area Code)

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes   x     No   ¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes   ¨     No   ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer   ¨    Accelerated filer   x
Non-accelerated filer   ¨   (do not check if a smaller reporting company)    Smaller reporting company   ¨

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes   ¨     No   x

The number of shares of the issuer’s Common Stock, $0.001 par value, outstanding as of November 9, 2016 was 13,687,280.


Table of Contents

CM FINANCE INC

TABLE OF CONTENTS

 

         Page  

PART I. FINANCIAL INFORMATION

 

Item 1.

  Financial Statements   
 

Consolidated Statements of Assets and Liabilities as of September 30, 2016 (unaudited) and June 30, 2016

     3   
 

Consolidated Statements of Operations for the three months ended September 30, 2016 (unaudited) and September 30, 2015 (unaudited)

     4   
 

Consolidated Statements of Changes in Net Assets for the three months ended September 30, 2016 (unaudited) and September 30, 2015 (unaudited)

     5   
 

Consolidated Statements of Cash Flows for the three months ended September 30, 2016 (unaudited) and September 30, 2015 (unaudited)

     6   
 

Consolidated Schedule of Investments as of September 30, 2016 (unaudited) and June 30, 2016

     7   
 

Notes to Unaudited Consolidated Financial Statements (unaudited)

     11   

Item 2.

  Management’s Discussion and Analysis of Financial Condition and Results of Operations      31   

Item 3.

  Quantitative and Qualitative Disclosures About Market Risk      41   

Item 4.

  Controls and Procedures      41   

PART II. OTHER INFORMATION

 

Item 1.

  Legal Proceedings      41   

Item 1A.

  Risk Factors      41   

Item 2

  Unregistered Sales of Equity Securities and Use of Proceeds      41   

Item 3.

  Defaults Upon Senior Securities      41   

Item 4.

  Mine Safety Disclosures      42   

Item 5.

  Other Information      42   

Item 6.

  Exhibits      42   

SIGNATURES

   43  

 

2


Table of Contents

CM Finance Inc and subsidiaries

Consolidated Statements of Assets and Liabilities

 

 

     September 30, 2016
(Unaudited)
    June 30, 2016  

Assets

    

Non-controlled, non-affiliated investments, at fair value (amortized cost of $291,083,122 and $307,364,949, respectively)

   $ 264,194,780      $ 272,114,164   

Derivatives, at fair value (cost $0 and $0, respectively)

     8,859,132        9,071,659   

Cash

     12,559,961        18,433,066   

Cash, restricted

     16,129,989        18,023,466   

Interest receivable

     2,327,586        1,897,710   

Deferred offering costs

     186,513        186,513   

Prepaid expenses and other assets

     90,368        234,837   
  

 

 

   

 

 

 

Total Assets

   $ 304,348,329      $ 319,961,415   
  

 

 

   

 

 

 

Liabilities

    

Notes Payable:

    

Term loan

   $ 102,000,000      $ 102,000,000   

Revolving credit facility

     14,500,000        30,478,329   

Deferred debt issuance costs

     (1,146,295     (1,510,491
  

 

 

   

 

 

 

Notes Payable, net

     115,353,705        130,967,838   

Base management fees payable

     1,211,535        1,257,768   

Income-based incentive fees payable

     275,540        275,540   

Payable for investments purchased

     9,700,000        8,828,750   

Derivatives, at fair value (cost $0 and $0, respectively)

     8,859,132        9,071,659   

Dividend payable

     4,810,208        4,809,778   

Deferred financing costs payable

     879,042        879,042   

Interest payable

     170,166        175,792   

Accrued expenses and other liabilities

     833,485        945,365   
  

 

 

   

 

 

 

Total Liabilities

     142,092,813        157,211,532   

Commitments and Contingencies (Note 6)

    

Net Assets

    

Common Stock, par value $0.001 per share (100,000,000 shares authorized, 13,680,910 and 13,679,686 shares issued and outstanding, respectively)

     13,681        13,680   

Additional paid-in capital

     199,733,880        199,722,997   

Accumulated net realized loss

     (8,028,289     —     

Distributions in excess of net investment income

     (2,575,414     (1,736,009

Net unrealized depreciation on investments

     (26,888,342     (35,250,785
  

 

 

   

 

 

 

Total Net Assets

     162,255,516        162,749,883   
  

 

 

   

 

 

 

Total Liabilities and Net Assets

   $ 304,348,329      $ 319,961,415   
  

 

 

   

 

 

 

Net Asset Value Per Share

   $ 11.86      $ 11.90   

See notes to unaudited consolidated financial statements.

 

3


Table of Contents

CM Finance Inc and subsidiaries

Consolidated Statements of Operations (Unaudited)

 

 

     For the three months ended September 30,  
     2016     2015  

Investment Income:

    

Interest income

   $ 7,368,382      $ 9,595,613   

Payment in-kind interest income

     —          239,239   

Other fee income

     216,467        33,742   
  

 

 

   

 

 

 

Total investment income

     7,584,849        9,868,594   

Expenses:

    

Base management fees

     1,211,535        1,452,157   

Income-based incentive fees

     —          1,229,032   

Interest expense

     991,390        984,988   

Amortization of deferred debt issuance costs

     364,196        348,459   

Allocation of administrative costs from advisor

     268,242        276,951   

Professional fees

     194,589        292,334   

Custodian and administrator fees

     108,689        86,644   

Directors’ fees

     100,000        114,750   

Insurance expense

     92,560        86,203   

Other expenses

     282,845        128,556   
  

 

 

   

 

 

 

Total expenses

     3,614,046        5,000,074   
  

 

 

   

 

 

 

Net expenses

     3,614,046        5,000,074   
  

 

 

   

 

 

 

Net investment income

     3,970,803        4,868,520   

Net realized and unrealized gains (losses) on investment transactions:

    

Net realized gains (losses) on investments

     (8,028,289     195,320   

Net change in unrealized appreciation (depreciation) on investments and unfunded commitments

     8,362,443        (4,895,677
  

 

 

   

 

 

 

Net realized and unrealized gains (losses)

     334,154        (4,700,357
  

 

 

   

 

 

 

Net increase in net assets resulting from operations

   $ 4,304,957      $ 168,163   
  

 

 

   

 

 

 

Basic and diluted:

    

Net investment income per share

   $ 0.29      $ 0.36   

Earnings per share

   $ 0.31      $ 0.01   

Weighted Average Shares of Common Stock Outstanding

     13,680,817        13,668,193   

Distributions declared per common share

   $ 0.3516      $ 0.7769   
  

 

 

   

 

 

 

See notes to unaudited consolidated financial statements.

 

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CM Finance Inc and subsidiaries

Consolidated Statements of Changes in Net Assets (Unaudited)

 

 

     For the three months ended September 30,  
     2016     2015  

Net assets at beginning of period

   $ 162,749,883      $ 196,950,849   

Increase (decrease) in net assets resulting from operations

    

Net investment income

     3,970,803        4,868,520   

Net realized gain (loss) on investments

     (8,028,289     195,320   

Net change in unrealized appreciation (depreciation) on investments and unfunded commitments

     8,362,443        (4,895,677
  

 

 

   

 

 

 

Net increase in net assets from operations

     4,304,957        168,163   

Stockholder distributions

    

Dividend from net investment income

     (4,810,208     (6,252,640

Distributions from net realized gains

     —          (4,366,660
  

 

 

   

 

 

 

Net decrease in net assets resulting from stockholder distributions

     (4,810,208     (10,619,300

Capital transactions

    

Reinvestments of stockholder distributions

     10,884        31,219   
  

 

 

   

 

 

 

Net increase in net assets resulting from capital transactions

     10,884        31,219   

Total decrease in net assets

     (494,367     (10,419,918
  

 

 

   

 

 

 

Net assets at end of period (including distributions in excess of net investment income of $(2,575,414) and $(1,797,033), respectively)

   $ 162,255,516      $ 186,530,931   
  

 

 

   

 

 

 

See notes to unaudited consolidated financial statements.

 

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CM Finance Inc and subsidiaries

Consolidated Statements of Cash Flows (Unaudited)

 

 

     For the three months ended September 30,  
     2016     2015  

Cash Flows from Operating Activities

    

Net increase in net assets resulting from operations

   $ 4,304,957      $ 168,163   

Adjustments to reconcile net increase in net assets resulting from operations to net cash provided by (used in) operating activities:

    

Origination and purchases of investments

     (24,280,175     (39,579,000

Payment in-kind interest

     —          (239,239

Sales and repayments of investments

     33,220,366        44,754,364   

Net realized (loss) gain on investments in securities

     8,028,289        (195,320

Net change in unrealized (appreciation) depreciation on investments and unfunded commitments

     (8,362,443     4,895,677   

Amortization of discount/premium on investments

     (686,653     (674,552

Amortization of deferred debt issuance costs

     364,196        348,459   

Net (increase) decrease in operating assets:

    

Cash, restricted

     1,893,477        (2,880,397

Interest receivable

     (429,876     14,158   

Prepaid expenses and other assets

     144,469        71,939   

Net increase (decrease) in operating liabilities:

    

Payable for investments purchased

     871,250        1,021,345   

Interest payable

     (5,626     5,609   

Accrued expenses and other liabilities

     (111,880     251,612   

Base management fees payable

     (46,233     31,179   

Income-based incentive fees payable

     —          (219,562
  

 

 

   

 

 

 

Net Cash Provided by Operating Activities

     14,904,118        7,774,435   

Cash Flows from Financing Activities

    

Distributions to shareholders

     (4,798,894     (10,587,148

Proceeds from borrowing on revolving credit facility

     —          28,439,022   

Repayments of borrowing on revolving credit facility

     (15,978,329     (27,856,711
  

 

 

   

 

 

 

Net Cash Used in Financing Activities

     (20,777,223     (10,004,837
  

 

 

   

 

 

 

Net Change in Cash

     (5,873,105     (2,230,402

Cash

    

Beginning of period

     18,433,066        21,535,492   
  

 

 

   

 

 

 

End of period

   $ 12,559,961      $ 19,305,090   
  

 

 

   

 

 

 

Supplemental and non-cash financing cash flow information:

    

Cash paid for interest

   $ 997,016      $ 979,379   

Issuance of shares pursuant to Dividend Reinvestment Plan

     10,884        31,219   

See notes to unaudited consolidated financial statements.

 

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Table of Contents

CM Finance Inc and subsidiaries

Consolidated Schedule of Investments

(Unaudited)

September 30, 2016

 

Investments (1)

 

Industry

 

Interest Rate

  Base Floor
Rate
    Maturity
Date
    Principal
Amount/
Shares (2)
    Amortized
Cost
    Fair Value     % of
Net Assets
 

Non-Controlled/Non-Affiliates

               

Senior Secured First Lien Debt Investments

               

A.S.V., Inc.

  Construction & Building   1M L + 10.50% (3)     1.00%        12/19/2019      $ 16,500,000      $ 16,233,599      $ 15,840,000        9.76

AAR Intermediate Holdings, LLC - Term A (9)

  Oilfield Services   1M L + 5.00%     1.00%        9/30/2021        4,950,495        4,950,495        4,950,495        3.05

AAR Intermediate Holdings, LLC - Term B (4) (9)

  Oilfield Services   1M L + 8.00% PIK     1.00%        9/30/2021        10,166,879        4,392,772        4,392,772        2.71

AM General, LLC

  Automobiles and Components   3M L + 9.00% (3)     1.25%        3/22/2018        7,800,000        7,760,733        7,722,000        4.76

American Gaming Systems, Inc.

  Entertainment and Leisure   3M L + 8.25% (3)     1.00%        12/21/2020        29,359,652        29,022,888        28,919,257        17.82

FPC Holdings, Inc.

  Automobiles and Components   1M L + 4.00%     1.25%        11/19/2019        9,882,955        8,592,340        8,627,819        5.32

JAC Holdings Corp.

  Automobiles and Components   11.50% (3)     —          10/1/2019        13,060,000        13,264,483        13,843,600        8.53

Land Holdings I, LLC

  Entertainment and Leisure   12.00% (3)     —          6/26/2019        11,750,000        11,713,797        11,985,000        7.39

NS NWN Acquisition LLC

  Information Technology   3M L + 10.00% (3)     1.00%        10/16/2020        8,453,243        8,284,178        8,284,179        5.11

PR Wireless, Inc.

  Telecommunications   3M L + 9.00% (3)     1.00%        6/27/2020        16,617,500        15,438,947        15,121,925        9.32

Premiere Global Services, Inc.

  Business Services   1M L + 6.50%     1.00%        12/8/2021        9,811,235        9,018,008        9,516,898        5.86

Redbox Automated Retail, LLC

  Retail   1M L + 7.50%     1.00%        9/23/2021        10,000,000        9,700,000        9,700,000        5.98

School Specialty, Inc.

  Business Services   1M L + 8.50%     1.00%        6/11/2019        9,335,313        9,170,761        9,265,298        5.71

U.S. Well Services, LLC

  Oilfield Services   1M L + 11.50% (3)     0.50%        5/2/2019        6,189,789        6,111,871        4,642,342        2.86

YRC Worldwide, Inc. (5)

  Trucking and Leasing   3M L + 7.25% (3)     1.00%        2/13/2019        14,575,002        14,519,486        13,992,002        8.62
         

 

 

   

 

 

   

 

 

   

 

 

 

Total Senior Secured First Lien Debt Investments

            178,452,063        168,174,358        166,803,587        102.80

Senior Secured Second Lien Debt Investments

               

AP NMT Acquisition BV (5)(6)

  Media   3M L + 9.00% (3)     1.00%        8/13/2022        20,000,000        18,921,459        16,000,000        9.86

Bird Electric Enterprises, LLC (4)

  Utilities   14.63%, 3.00 PIK     —          10/9/2020        15,037,500        14,809,188        7,518,750        4.63

Caelus Energy Alaska 03, LLC

  Oil and Gas   3M L + 7.50% (3)     1.25%        4/15/2020        26,000,000        23,893,299        18,200,000        11.22

North American Lifting Holdings, Inc.

  Industrial   3M L + 9.00% (3)     1.00%        11/27/2021        16,200,000        15,422,225        11,340,000        6.99

Telecommunications Management, LLC

  Cable   3M L + 8.00% (3)     1.00%        10/30/2020        11,333,096        11,284,646        11,219,766        6.91

TNS, Inc.

  Telecommunications   3M L + 8.00% (3)     1.00%        8/14/2020        15,092,924        15,096,239        15,017,459        9.26

Trident USA Health Services, LLC

  Healthcare-Products/Services   3M L + 9.00% (3)     1.25%        7/31/2020        21,878,286        21,792,676        17,940,194        11.06
         

 

 

   

 

 

   

 

 

   

 

 

 

Total Senior Secured Second Lien Debt Investments

            125,541,806        121,219,732        97,236,169        59.93

Investments (1)

 

Industry

            Maturity
Date
    Principal
Amount/
Shares (2)
    Amortized
Cost
    Fair Value     % of
Net Assets
 

Equity, Warrants and Other Investments (7)

               

AAR Intermediate Holdings, LLC (Equity Interest)

 

Oilfield Services

          11,880        —          —          —     

Endeavour International Holding B.V., $3.01 strike (Warrants) (5)

  Oil and Gas         11/30/2017        160,000        160,000        1        —     

NS NWN Acquisition, LLC (Equity Interest)

  Information Technology           154        155,023        155,023        0.10

PR Wireless, Inc., $0.01 strike (Warrants)

  Telecommunications         9/24/2027        201        1,374,009        —          —     
         

 

 

   

 

 

   

 

 

   

 

 

 

Total Equity, Warrants and Other Investments

            172,235        1,689,032        155,024        0.10
         

 

 

   

 

 

   

 

 

   

 

 

 

Total Non-Controlled/Non-Affiliates

  

  $ 304,166,104      $ 291,083,122      $ 264,194,780        162.83
         

 

 

   

 

 

   

 

 

   

 

 

 

Liabilities in excess of other assets

              (101,939,264     (62.83 %) 

Net Assets

  

  $ 162,255,516        100.00

 

 

See notes to unaudited consolidated financial statements.

 

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Table of Contents

CM Finance Inc and subsidiaries

Consolidated Schedule of Investments (continued)

(Unaudited)

September 30, 2016

 

    

Industry

   Interest
Rate
    Maturity
Date
     Notional
Amount
     Amortized
Cost
     Fair Value     % of
Net Assets
 

Derivatives

            

Assets

                  

Embedded derivative— Notes Payable (8)

   Diversified Financial Services         $ 102,000,000       $ —         $ 7,716,735        4.76

Embedded derivative— Notes Payable (8)

   Diversified Financial Services           50,000,000         —           1,142,397        0.70
          

 

 

    

 

 

    

 

 

   

 

 

 

Total Assets

             152,000,000         —           8,859,132        5.46
          

 

 

    

 

 

    

 

 

   

 

 

 

Liabilities

                  

Total Return Swap (7)(8)

   Diversified Financial Services      1M L + 2.75     12/4/2018         102,000,000         —           (7,716,735     (4.76 %) 

Total Return Swap (7)(8)

   Diversified Financial Services      0.50     12/4/2016         50,000,000         —           (1,142,397     (0.70 %) 
          

 

 

    

 

 

    

 

 

   

 

 

 

Total Liabilities

             152,000,000         —           (8,859,132     (5.46 %) 
          

 

 

    

 

 

    

 

 

   

 

 

 

Total Derivatives

           $ 304,000,000       $ —         $ —          —     
          

 

 

    

 

 

    

 

 

   

 

 

 

 

(1) All investments are in non-controlled and non-affiliated issuers. All investments are valued in good faith by the board of directors.
(2) Principal amount includes capitalized PIK interest.
(3) Held by the Company indirectly through CM Finance SPV, Ltd. and pledged as collateral for the Total Return Swaps.
(4) Classified as non-accrual asset.
(5) The investment is not a qualifying asset under Section 55(a) of the Investment Company Act of 1940. The Company may not acquire any non-qualifying asset unless, at the time of acquisition, qualifying assets represent at least 70% of the Company’s total assets.
(6) A portfolio company domiciled in a foreign country. The jurisdiction of the security issuer may be a different country than the domicile of the portfolio company.
(7) Securities are non-income producing.
(8) Refer to Note 5 for more detail on the Total Return Swaps and the Embedded derivatives—Notes Payable.
(9)   Refer to Note 6 for more detail on the unfunded commitment.

 

1M L –   1 month LIBOR (0.53% as of September 30, 2016)
3M L –   3 month LIBOR (0.85% as of September 30, 2016)
PIK –   Payment-In-Kind

 

 

See notes to unaudited consolidated financial statements.

 

8


Table of Contents

CM Finance Inc and subsidiaries

Consolidated Schedule of Investments

June 30, 2016

 

Investments (1)

 

Industry

  Interest Rate   Base Floor
Rate
  Maturity
Date
  Principal
Amount/
Shares (2)
  Amortized
Cost
  Fair Value   % of
Net Assets

Non-Controlled/Non-Affiliates

                           

Senior Secured First Lien Debt Investments

                           

A.S.V., Inc.

  Construction & Building   1M L + 10.50% (3)       1.00%         12/19/2019       $ 16,750,000       $ 16,470,094       $ 16,080,000         9.88 %

AAR Intermediate Holdings, LLC (4)

  Oilfield Services   3M L + 14.00% PIK       1.00%         3/30/2019         16,987,758         16,069,253         9,343,267         5.74 %

AM General, LLC

  Automobiles and
Components
  3M L + 9.00% (3)       1.25%         3/22/2018         8,088,889         8,041,201         7,603,555         4.67 %

American Gaming Systems, Inc.

  Entertainment and Leisure   3M L + 8.25% (3)       1.00%         12/21/2020         29,435,127         29,071,821         28,993,600         17.81 %

JAC Holdings Corp.

  Automobiles and Components   11.50% (3)       —           10/1/2019         13,060,000         13,274,716         13,843,600         8.51 %

Land Holdings I, LLC

  Entertainment and Leisure   12.00% (3)       —           6/26/2019         23,500,000         23,460,521         23,970,000         14.73 %

NS NWN Acquisition LLC

  Information Technology   3M L + 9.00% (3)       1.00%         10/16/2020         9,812,500         9,616,250         9,616,250         5.91 %

PR Wireless, Inc.

  Telecommunications   3M L + 9.00% (3)       1.00%         6/27/2020         16,660,000         15,417,305         15,160,600         9.32 %

Premiere Global Services, Inc.

  Business Services   1M L + 6.50%       1.00%         12/8/2021         4,937,343         4,453,235         4,443,609         2.73 %

School Specialty, Inc.

  Business Services   1M L + 8.50%       1.00%         6/11/2019         9,000,000         8,828,750         8,831,250         5.43 %

U.S. Well Services, LLC

  Oilfield Services   1M L + 11.50% (3)       0.50%         5/2/2019         6,189,789         6,106,044         5,539,861         3.40 %

YRC Worldwide, Inc. (5)

  Trucking and Leasing   3M L + 7.00% (3)       1.00%         2/13/2019         14,612,470         14,550,898         13,662,660         8.39 %
                 

 

 

     

 

 

     

 

 

     

 

 

 

Total Senior Secured First Lien Debt Investments

                  169,033,876         165,360,088         157,088,252         96.52 %
                 

 

 

     

 

 

     

 

 

     

 

 

 

Senior Secured Second Lien Debt Investments

                           

AP NMT Acquisition BV (5)(6)

  Media   3M L + 9.00% (3)       1.00%         8/13/2022         20,000,000         18,890,373         16,000,000         9.83 %

Bird Electric Enterprises, LLC (4)

  Utilities   14.63%, 3.00% PIK       —           10/9/2020         15,037,500         14,799,123         7,518,750         4.62 %

Caelus Energy Alaska 03 LLC

  Oil and Gas   3M L + 7.50% (3)       1.25%         4/15/2020         26,000,000         23,813,825         16,900,000         10.38 %

Language Line, LLC

  Services   3M L + 9.75% (3)       1.00%         7/7/2022         8,000,000         7,957,817         8,000,000         4.92 %

Maxim Crane

  Industrial   3M L + 9.25% (3)       1.00%         11/26/2018         10,000,000         10,053,345         10,000,000         6.14 %

North American Lifting Holdings, Inc.

  Industrial   3M L + 9.00% (3)       1.00%         11/27/2021         16,200,000         15,384,245         11,664,000         7.17 %

Telecommunications Management, LLC

  Cable   3M L + 8.00% (3)       1.00%         10/30/2020         11,333,096         11,281,657         11,106,434         6.82 %

TNS, Inc.

  Telecommunications   3M L + 8.00% (3)       1.00%         8/14/2020         15,092,924         15,096,455         14,866,530         9.14 %

Trident USA Health Services, LLC

  Healthcare-Products/
Services
  3M L + 9.00% (3)       1.25%         7/31/2020         21,878,286         21,787,931         18,815,326         11.56 %
                 

 

 

     

 

 

     

 

 

     

 

 

 

Total Senior Secured Second Lien Debt Investments

                  143,541,806         139,064,771         114,871,040         70.58 %
                 

 

 

     

 

 

     

 

 

     

 

 

 

See notes to unaudited consolidated financial statements.

 

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Table of Contents

CM Finance Inc and subsidiaries

Consolidated Schedule of Investments – (continued)

June 30, 2016

 

Investments (1)

  

Industry

   Maturity
Date
     Principal
Amount/
Shares (2)
     Amortized
Cost
     Fair Value     % of
Net Assets
 

Equity, Warrants and Other Investments (7)

                

AAR Intermediate Holdings, LLC (Warrants) (4)(5)

   Oilfield Services      9/30/2024       $ 1,643,206       $ 1,251,058       $ —          —  

Endeavour International Holding B.V.,
$3.01 strike (Warrants) (5)

   Oil and Gas      11/3/2017         160,000         160,000         1        —     

NS NWN Acquisition LLC (Equity Interest)

   Information
Technology
        154         155,023         154,871        0.10

PR Wireless, Inc., $0.01 strike (Warrants)

   Telecommunications      9/24/2027         201         1,374,009         —          —     
        

 

 

    

 

 

    

 

 

   

 

 

 

Total Equity, Warrants and Other Investments

           1,803,561         2,940,090         154,872        0.10
        

 

 

    

 

 

    

 

 

   

 

 

 

Total Non-Controlled/Non-Affiliates

         $ 314,379,243       $ 307,364,949       $ 272,114,164        167.20
        

 

 

    

 

 

    

 

 

   

 

 

 

Liabilities in excess of other assets

                 (109,364,281 )     (67.20 )%
              

 

 

   

 

 

 

Net Assets

               $ 162,749,883        100.00
              

 

 

   

 

 

 

 

   

Industry

   Interest
Rate
    Maturity
Date
     Notional
Amount
     Amortized
Cost
     Fair
Value
    % of
Net Assets
 

Derivatives

                 

Assets

                 

Embedded derivative—Notes Payable (8)

  Diversified Financial Services         $ 102,000,000       $ —         $ 6,929,903        4.26

Embedded derivative—Notes Payable (8)

  Diversified Financial Services           50,000,000         —           2,141,756        1.31
         

 

 

    

 

 

    

 

 

   

 

 

 

Total Assets

            152,000,000         —           9,071,659        5.57
         

 

 

    

 

 

    

 

 

   

 

 

 

Liabilities

                 

Total Return Swap (7)(8)

  Diversified Financial Services      1M L + 2.75     12/4/2018         102,000,000         —           (6,929,903 )     (4.26 )%

Total Return Swap (7)(8)

  Diversified Financial Services      0.50     12/4/2016         50,000,000         —           (2,141,756 )     (1.31 )%
         

 

 

    

 

 

    

 

 

   

 

 

 

Total Liabilities

            152,000,000         —           (9,071,659 )     (5.57 )%
         

 

 

    

 

 

    

 

 

   

 

 

 

Total Derivatives

          $ 304,000,000       $ —         $ —          —     
         

 

 

    

 

 

    

 

 

   

 

 

 

 

(1)   All investments are in non-controlled and non-affiliated issuers. All investments are valued in good faith by the board of directors.
(2)   Principal amount includes capitalized PIK interest.
(3) Held by the Company indirectly through CM Finance SPV, Ltd. and pledged as collateral for the Total Return Swaps.
(4) Classified as non-accrual asset.
(5) The investment is not a qualifying asset under Section 55(a) of the Investment Company Act of 1940. The Company may not acquire any non-qualifying asset unless, at the time of acquisition, qualifying assets represent at least 70% of the Company’s total assets.
(6) A portfolio company domiciled in a foreign country. The jurisdiction of the security issuer may be a different country than the domicile of the portfolio company.
(7)   Securities are non-income producing.
(8) Refer to Note 5 for more detail on the Total Return Swaps and the Embedded derivatives — Notes Payable.

 

1M L –   1 month LIBOR (0.47% as of June 30, 2016)
3M L –   3 month LIBOR (0.65% as of June 30, 2016)
PIK –   Payment-In-Kind

See notes to unaudited consolidated financial statements.

 

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Table of Contents

CM Finance Inc and subsidiaries

Notes to Consolidated Financial Statements (unaudited)

September 30, 2016

Note 1. Organization

CM Finance Inc (“CMFN,” the “Company”), a Maryland corporation formed in May 2013, is a closed-end, externally managed, non-diversified management investment company that has elected to be regulated as a business development company (“BDC”) under the Investment Company Act of 1940, as amended (the “1940 Act”), and has elected to be treated as a regulated investment company (“RIC”) under Subchapter M of the Internal Revenue Code (the “Code”) for U.S. federal income tax purposes. The Company is an investment company and accordingly follows the investment company accounting and reporting guidance of the Financial Accounting Standards Board (“FASB”) Accounting Standard Codification Topic 946 Financial Services – Investment Companies.

On February 5, 2014, CM Finance Inc priced its initial public offering (the “Offering”), selling 7,666,666 shares of its common stock, par value $0.001, including the underwriters’ over-allotment, at a price of $15.00 per share with net proceeds of approximately $111.5 million.

CM Finance LLC, a Maryland limited liability company, commenced operations in March 2012. Immediately prior to the Offering, CM Finance LLC was merged with and into CM Finance Inc (the “Merger”). In connection with the Merger, CM Finance Inc issued 6,000,000 shares of common stock and $39.8 million in debt to the pre-existing CM Finance LLC investors, consisting of funds managed by Cyrus Capital Partners, L.P. (the “Original Investors” or the “Cyrus Funds”). CM Finance Inc had no assets or operations prior to completion of the Merger and, as a result, the books and records of CM Finance LLC became the books and records of CM Finance Inc, as the surviving entity. Immediately after the Merger, CM Finance Inc issued 2,181,818 shares of its common stock to Stifel Venture Corp. in exchange for $32.7 million in cash. CM Finance Inc used all of the proceeds of the sale of shares to Stifel Venture Corp., to repurchase 2,181,818 shares of common stock from the Original Investors. Immediately after the completion of the Offering, the Company had 13,666,666 shares outstanding. The Company also used a portion of the net proceeds of the Offering to repay 100% of the debt issued to the Original Investors in connection with the Merger.

Upon its election to be regulated as a BDC on February 5, 2014, the Company entered into an investment advisory agreement (the “Advisory Agreement”) and an administrative agreement with CM Investment Partners LLC (the “Adviser”) as its investment adviser and administrator, respectively.

The Company’s primary investment objective is to maximize total return to shareholders in the form of current income and capital appreciation by investing directly in debt and related equity of privately held lower middle-market companies to help these companies fund acquisitions, growth or refinancing. The Company invests primarily in lower middle-market companies in the form of unitranche loans, standalone first and second lien and mezzanine loans. The Company may also invest in unsecured debt, bonds and in the equity of portfolio companies through warrants and other instruments.

As a BDC, the Company is required to comply with certain regulatory requirements. For instance, as a BDC, the Company must not acquire any assets other than “qualifying assets” specified in the 1940 Act unless, at the time the acquisition is made, at least 70% of total assets are qualifying assets. Qualifying assets include investments in “eligible portfolio companies.” Under the relevant SEC rules, the term “eligible portfolio company” includes all private operating companies, operating companies whose securities are not listed on a national securities exchange, and certain public operating companies that have listed their securities on a national securities exchange and have a market capitalization of less than $250 million, in each case organized and with their principal of business in the United States.

The Company consolidates the operations of its wholly owned subsidiary, CM Finance SPV, Ltd. (“SPV”), a special purpose vehicle used to finance certain investments.

On September 23, 2014, the Company formed CM Portfolio Companies LLC, a wholly owned and consolidated taxable subsidiary.

The Company may form certain additional taxable subsidiaries (collectively, with CM Portfolio Companies LLC, the “Taxable Subsidiaries”), which are taxed as corporations for federal income tax purposes. These Taxable Subsidiaries allow the Company to hold equity securities of portfolio companies organized as pass-through entities while continuing to satisfy the requirements of a RIC under the Code.

 

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CM Finance Inc and subsidiaries

Notes to Consolidated Financial Statements (unaudited)

September 30, 2016

 

Note 2. Significant Accounting Policies

The following is a summary of significant accounting policies followed by the Company.

a. Basis of Presentation

The accompanying consolidated financial statements are prepared in conformity with U.S. generally accepted accounting principles (“U.S. GAAP”) and all values are stated in U.S. dollars, unless noted otherwise. The financial statements reflect all adjustments that are, in the opinion of management, necessary for a fair presentation of the results for the periods included herein as required by U.S. GAAP. These adjustments are normal and recurring in nature.

The preparation of consolidated financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the fair value of investments and other amounts reported in the consolidated financial statements and accompanying notes. Management believes that the estimates utilized in preparing the Company’s consolidated financial statements are reasonable and prudent. Actual results could differ materially from these estimates. All material inter-company balances and transactions have been eliminated.

b. Revenue Recognition, Security Transactions, and Realized/Unrealized Gains or Losses

Interest income, adjusted for amortization of premium and accretion of discount, is recorded on an accrual basis.

Dividend income is recorded on the ex-dividend date.

Origination, closing, commitment, and amendment fees, purchase and original issue discounts associated with loans to portfolio companies are accreted into interest income over the respective terms of the applicable loans. Accretion of discounts or premiums is calculated by the effective interest or straight-line method, as applicable, as of the purchase date and adjusted only for material amendments or prepayments. Upon the prepayment of a loan or debt security, any prepayment penalties and unamortized fees and discounts are recorded as interest income and are non-recurring in nature. During the three months ended September 30, 2016 and September 30, 2015, $288,951 and $756,691 of prepayment penalties and unamortized discounts upon prepayment were recorded as interest income, respectively.

Structuring fees and similar fees are recognized as income as earned, usually when received. Structuring fees, excess deal deposits, net profits interests and overriding royalty interests are included in other fee income.

Investment transactions are accounted for on a trade-date basis. Realized gains or losses on investments are determined by calculating the difference between the net proceeds from the disposition and the amortized cost basis of the investments, without regard to unrealized gains or losses previously recognized. Realized gains or losses on the sale of investments are calculated using the specific identification method. The Company reports changes in fair value of investments as a component of the net change in unrealized appreciation (depreciation) on investments in the Unaudited Consolidated Statements of Operations.

Management reviews all loans that become 90 days or more past due on principal or interest or when there is reasonable doubt that principal or interest will be collected for possible placement on non-accrual status. Accrued interest is generally reversed when a loan is placed on non-accrual status. Interest payments received on non-accrual loans may be recognized as income or applied to principal depending upon management’s judgment regarding collectability. Non-accrual loans are restored to accrual status when past due principal and interest is paid and, in management’s judgment, are likely to remain current, although management may make exceptions to this general rule if the loan has sufficient collateral value and is in the process of collection.

The Company may hold debt investments in its portfolio that contain a payment-in-kind (“PIK”) interest provision. PIK interest, which represents contractually deferred interest added to the investment balance that is generally due at maturity, is recorded on an accrual basis to the extent that such amounts are expected to be collected. PIK interest is not accrued if the Company does not expect the issuer to be able to pay all principal and interest when due. The Company earned PIK interest of $0 and $239,239 during the three months ended September 30, 2016 and September 30, 2015, respectively.

 

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CM Finance Inc and subsidiaries

Notes to Consolidated Financial Statements (unaudited)

September 30, 2016

Note 2. Significant Accounting Policies (Continued)

 

c. Paid In Capital

The Company records the proceeds from the sale of its common stock to common stock and additional paid-in capital, after all commissions and marketing support fees.

d. Earnings per Share

Earnings per share is calculated based upon the weighted average number of shares of common stock outstanding during the reporting period.

e. Distributions

Dividends and distributions to common shareholders are recorded on the ex-dividend date. The amount to be paid out as a dividend or distribution is determined by the board of directors each quarter and is generally based upon the earnings estimated by management. Net realized capital gains, if any, are generally distributed annually, although the Company may decide to retain such capital gains for investment.

The Company has adopted a dividend reinvestment plan that provides for reinvestment of any distributions the Company declares in cash on behalf of the Company’s shareholders, unless a shareholder elects to receive cash. As a result, if the Company’s board of directors authorizes, and the Company declares, a cash distribution, then the Company’s shareholders who have not “opted out” of the Company’s dividend reinvestment plan will have their cash distributions automatically reinvested in additional shares of the Company’s common stock, rather than receiving the cash distribution.

f. Cash and Restricted Cash

Cash and restricted cash consists of bank demand deposits. The Company deposits its cash in a financial institution and, at times, such balance may be in excess of the Federal Deposit Insurance Corporation insurance limits. All of the Company’s cash deposits are held at large established high credit quality financial institutions and management believes that the risk of loss associated with any uninsured balances is remote. The Company has restrictions on the uses of the cash held by SPV based on the terms of the Notes Payable. For more information on the Notes Payable, see Note 5.

g. Deferred Offering Costs

Deferred offering costs consist of fees and expenses incurred in connection with the offer and sale of the Company’s common stock and bonds, including legal, accounting, printing fees and other related expenses, as well as costs incurred in connection with the filing of a shelf registration statement. These costs are capitalized when incurred and recognized as a reduction of offering proceeds when the offering becomes effective.

h. Investment Transactions and Expenses

Purchases of loans, including revolving credit agreements, are recorded on a fully committed basis until the funded and unfunded portions are known or estimable, which in many cases may not be until settlement.

Expenses are accrued as incurred.

Deferred debt issuance costs, incurred in connection with the Company’s Notes Payable, are amortized using the straight line method over the life of the notes.

Offering costs were charged to paid-in capital upon sale of shares in the Offering.

i. Investment Valuation

The Company applies fair value accounting to all of its financial instruments in accordance with the 1940 Act and ASC Topic 820 – Fair Value Measurements and Disclosures (“ASC 820”). ASC 820 defines fair value, establishes a framework used to measure fair value and requires disclosures for fair value measurements. In accordance with ASC 820, the Company has categorized its investments and financial instruments carried at fair value, based on the priority of the valuation technique, into a three-level fair value

 

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Table of Contents

CM Finance Inc and subsidiaries

Notes to Consolidated Financial Statements (unaudited)

September 30, 2016

Note 2. Significant Accounting Policies (Continued)

 

hierarchy as discussed in Note 4. Fair value is a market-based measure considered from the perspective of the market participant who holds the financial instrument rather than an entity specific measure. Therefore, when market assumptions are not readily available, the Company’s own assumptions are set to reflect those that management believes market participants would use in pricing the financial instrument at the measurement date.

Fair value is defined as the price that would be received upon a sale of an asset in an orderly transaction between market participants at the measurement date. Market participants are buyers and sellers in the principal (or most advantageous) market for the asset that (a) are independent of us, (b) are knowledgeable, having a reasonable understanding about the asset based on all available information (including information that might be obtained through due diligence efforts that are usual and customary), (c) are able to transact for the asset, and (d) are willing to transact for the asset or liability (that is, they are motivated but not forced or otherwise compelled to do so).

Securities that are traded on securities exchanges (including such securities traded in the afterhours market) are valued on the basis of the closing price on the valuation date (if such prices are available). Securities that are traded on more than one securities exchange are valued at the closing price on the primary securities exchange on which such securities are traded on the valuation date (or if reported on the consolidated tape, then their last sales price on the consolidated tape). Listed options for which the last sales price falls between the last “bid” and “ask” prices for such options, are valued at their last sales price on the date of the valuation on the primary securities exchange on which such options are traded. Options for which the last sales price on the valuation date does not fall between the last “bid” and “ask” prices are valued at the average of the last “bid” and “ask” prices for such options on that date. To the extent these securities are actively traded, and valuation adjustments are not applied, they are categorized in Level 1 of the fair value hierarchy. The Company did not hold any Level 1 investments as of September 30, 2016 or June 30, 2016.

Investments that are not traded on securities exchanges but are traded on the over-the-counter (“OTC”) markets (such as term loans, notes and warrants) are valued using various techniques, which may consider recently executed transactions in securities of the issuer or comparable issuers, market price quotations (when observable) and fundamental data relating to the issuer. These investments are categorized in Level 2 of the fair value hierarchy, or in instances when lower relative weight is placed on transaction prices, quotations, or similar observable inputs, they are categorized in Level 3.

The embedded derivatives in the Term Notes payable (defined below) from SPV to UBS, AG (“UBS”) and the Total Return Swaps (the “TRS”) referencing the terms of the Notes Payable are valued based on the change in fair value and the underlying accrued interest of the portfolio of assets held in SPV less the accrued interest payable on the financing due to the TRS counterparty, UBS. Consideration has been given to counterparty risk. The Company has assessed the unsecured risk of the counterparty, UBS, in the form of credit ratings and the trading levels of that risk and has determined that the counterparty risk is minimal. The Company also notes that counterparty risk is further mitigated by the monthly settlement of both the interest portion of the embedded derivatives referencing the Notes Payable and the TRS. If the Company were to determine that counterparty risk were material, an adjustment to the fair value of the TRS would be made. The embedded derivatives in the Notes Payable and the TRS have been categorized in Level 3 of the fair value hierarchy. See Note 4 and Note 5 for more detail.

Investments for which market quotations are not readily available or may be considered unreliable are fair valued, in good faith, using a method determined to be appropriate in the given circumstances. The valuation methods used include the Cost Approach, the Market Approach and the Income Approach. Inputs used in these approaches may include, but are not limited to, interest rate yield curves, credit spreads, recovery rates, comparable company transactions, trading multiples, and volatilities. The valuation method of the Company may change as changes in the underlying company dictates, such as moving from the Cost Approach to Market Approach when underlying conditions change at the company. Because of the inherent uncertainty of valuation in these circumstances, the fair values for the aforementioned investments may differ significantly from values that would have been used had a ready and liquid market for such investments existed or from the amounts that might ultimately be realized, and such differences could be material.

The Company’s valuation policies and procedures are developed by the Adviser, which is also responsible for ensuring that the valuation policies and procedures are consistently applied across all investments of the Company, and approved by the Company’s board of directors. The valuations are continuously monitored and the valuation process for Level 3 investments is completed on a quarterly basis and is designed to subject the valuation of Level 3 investments to an appropriate level of consistency, oversight and review. The valuation process begins with each portfolio company or investment being initially valued by the investment professionals of the Adviser responsible for the portfolio investment. These investment professionals prepare the preliminary valuations based on their evaluation of financial and operating data, company specific developments, market valuations of comparable securities from the same company or that of comparable companies as well as any other relevant factors including recent purchases and sales that may have occurred preceding month-end.

 

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Table of Contents

CM Finance Inc and subsidiaries

Notes to Consolidated Financial Statements (unaudited)

September 30, 2016

Note 2. Significant Accounting Policies (Continued)

 

Valuation models are typically calibrated upon initial funding, and are re-calibrated as necessary upon subsequent material events (including, but not limited to additional financing activity, changes in comparable companies, and recent trades). The preliminary valuation conclusions are then documented and discussed with senior management of the Adviser. On a periodic basis and at least once annually, independent valuation firm(s) engaged by the Company conduct independent appraisals and review the Adviser’s preliminary valuations and make their own independent assessment. The Valuation Committee of the Company’s board of directors then reviews the preliminary valuations of the Adviser and that of the independent valuation firms. The Valuation Committee discusses the valuations and makes a recommendation to the Company’s board of directors regarding the fair value of each investment in good faith based on the input of the Adviser and the independent valuation firms. Upon recommendation by the Valuation Committee and a review of the valuation materials of the Adviser and the third party independent valuation firms, the board of directors of the Company determines, in good faith, the fair value of each investment.

For more information on the classification of the Company’s investments by major categories, see Note 4.

The fair value of the Company’s assets and liabilities that qualify as financial instruments under U.S. GAAP approximates the carrying amounts presented in the Unaudited Consolidated Statements of Assets and Liabilities.

j. Income Taxes

The Company has elected to be treated, for U.S. federal income tax purposes, as a RIC under Subchapter M of the Code. To qualify and maintain qualification as a RIC, the Company must, among other things, meet certain source of income and asset diversification requirements and distribute to shareholders, for each taxable year, at least 90% of the Company’s “investment company taxable income,’’ which is generally the Company’s net ordinary income plus the excess, if any, of realized net short-term capital gains over realized net long-term capital losses. If the Company continues to qualify as a RIC and continues to satisfy the annual distribution requirement, the Company will not have to pay corporate level federal income taxes on any income that the Company distributes to its shareholders. The Company intends to make distributions in an amount sufficient to maintain RIC status each year and to avoid any federal income taxes on income. The Company will also be subject to nondeductible federal excise taxes if the Company does not distribute to its shareholders at least 98% of net ordinary income, 98.2% of capital gains, if any, and any recognized and undistributed income from prior year for which it paid no federal income taxes.

Book and tax basis differences that are permanent differences are reclassified among the Company’s capital accounts, as appropriate at year-end. Additionally, the tax character of distributions is determined in accordance with the Code, which differs from U.S. GAAP. During the three months ended September 30, 2016 and September 30, 2015, the Company recorded distributions of $4.8 million and $10.6 million, respectively. The tax character of a portion of these distributions may be return of capital.

U.S. GAAP requires the evaluation of tax positions taken or expected to be taken in the course of preparing the Company’s tax returns to determine whether the tax positions are “more-likely-than-not” of being sustained by the applicable tax authority. Tax positions not deemed to meet a more-likely-than-not threshold would be recorded as a tax expense in the current year. The Company’s policy is to recognize accrued interest and penalties associated with uncertain tax positions as part of the tax provision.

The Company has analyzed such tax positions and has concluded that no unrecognized tax benefits should be recorded for uncertain tax positions for any tax year since inception. Each of the tax years since inception remain subject to examination by taxing authorities. This conclusion may be subject to review and adjustment at a later date based on factors, including but not limited to, ongoing analysis and changes to laws, regulations, and interpretations thereof.

k. Capital Gains Incentive Fee

Under U.S. GAAP, the Company calculates the capital gains incentive fee payable to the Adviser as if the Company had realized all investments at their fair values as of the reporting date. Accordingly, the Company accrues a provisional capital gains incentive fee taking into account any unrealized gains or losses. As the provisional capital gains incentive fee is subject to the performance of investments until there is a realization event, the amount of provisional capital gains incentive fee accrued at a reporting date may vary from the incentive fee that is ultimately realized and the differences could be material.

The cost basis used to compute gains and losses for the purpose of determining incentive fees is the fair value of the Company’s investment on February 5, 2014, at the time the Company priced its Offering.

 

15


Table of Contents

CM Finance Inc and subsidiaries

Notes to Consolidated Financial Statements (unaudited)

September 30, 2016

Note 2. Significant Accounting Policies (Continued)

 

As of September 30, 2016 and June 30, 2016, there was no capital gains incentive fee payable to the Adviser under the Advisory Agreement.

Note 3. New Accounting Pronouncements

From time to time, new accounting pronouncements are issued by the FASB or other standards setting bodies that are adopted by the Company as of the specified effective date. The Company believes that the impact of recently issued standards that are not yet effective will not have a material impact on its financial statements upon adoption.

Note 4. Investments

The Company’s investments at any time may include securities and other financial instruments, including, without limitation, corporate and government bonds, convertible securities, collateralized loan obligations, term loans, trade claims, equity securities, privately negotiated securities, direct placements, working interests, warrants and investment derivatives (such as credit default swaps, recovery swaps, total return swaps, options, forward contracts, and futures) (all of the foregoing collectively referred to in these financial statements as “investments.”)

a. Certain Risk Factors

In the ordinary course of business, the Company manages a variety of risks including market risk, liquidity risk and credit risk. The Company identifies, measures and monitors risk through various control mechanisms, including trading limits and diversifying exposures and activities across a variety of instruments, markets and counterparties.

Market risk is the risk of potential adverse changes to the value of financial instruments because of changes in market conditions, including as a result of changes in the credit quality of a particular issuer, credit spreads, interest rates, and other movements and volatility in security prices or commodities. In particular, the Company may invest in issuers that are experiencing or have experienced financial or business difficulties (including difficulties resulting from the initiation or prospect of significant litigation or bankruptcy proceedings), which involves significant risks. The Company manages its exposure to market risk through the use of risk management strategies and various analytical monitoring techniques.

The Company’s assets may, at any time, include securities and other financial instruments or obligations that are illiquid or thinly traded, making purchase or sale of such securities and financial instruments at desired prices or in desired quantities difficult. Furthermore, the sale of any such investments may be possible only at substantial discounts, and it may be extremely difficult to value any such investments accurately.

Credit risk is the potential loss the Company may incur from a failure of an issuer to make payments according to the terms of a contract. The Company is subject to credit risk because of its strategy of investing in the debt of leveraged companies and its involvement in derivative instruments. The Company’s exposure to credit risk on its investments is limited to the fair value of the investments. The Company’s TRS contracts are executed pursuant to an International Swaps and Derivatives Association (“ISDA”) master agreement (the “ISDA Agreement”) that the Company currently has in place with UBS. At September 30, 2016 and June 30, 2016, the Company had all of its counterparty credit risk associated with non-performance for swaps with UBS. With regard to derivatives, the Company attempts to limit its credit risk by considering its counterparty’s (or its guarantor’s) credit rating. The Company’s policy is to not hold counterparty collateral on ISDA Agreements, but would do so if the exposure were material.

b. Investments

Investment purchases, sales and principal payments/paydowns are summarized below for the three months ended September 30, 2016 and September 30, 2015, respectively. These purchase and sale amounts exclude derivative instruments.

 

     Three Months Ended September 30,  
     2016      2015  

Investment purchases, at cost (including PIK interest)

   $ 24,280,175       $ 39,818,239   

Investment sales and repayments

     33,220,366         44,754,364   

 

16


Table of Contents

CM Finance Inc and subsidiaries

Notes to Consolidated Financial Statements (unaudited)

September 30, 2016

Note 4. Investments (Continued)

 

The composition of the Company’s investments as of September 30, 2016, as a percentage of the total portfolio, at amortized cost and fair value, are as follows:

 

     Investment at
Amortized Cost
     Percentage     Investments at
Fair Value
     Percentage  

Senior Secured First Lien Debt Investments

   $ 168,174,358         57.78   $ 166,803,587         63.14

Senior Secured Second Lien Debt Investments

     121,219,732         41.64        97,236,169         36.80   

Equity, Warrants and Other Investments

     1,689,032         0.58        155,024         0.06   

Embedded derivative— Notes Payable

     —           —          8,859,132         3.35   

Total Return Swap

     —           —          (8,859,132      (3.35
  

 

 

    

 

 

   

 

 

    

 

 

 

Total

   $ 291,083,122         100.00   $ 264,194,780         100.00
  

 

 

    

 

 

   

 

 

    

 

 

 

The composition of the Company’s investments as of June 30, 2016, as a percentage of the total portfolio, at amortized cost and fair value, are as follows:

 

     Investment at
Amortized Cost
     Percentage     Investments at
Fair Value
     Percentage  

Senior Secured First Lien Debt Investments

   $ 165,360,088         53.80   $ 157,088,252         57.73

Senior Secured Second Lien Debt Investments

     139,064,771         45.24        114,871,040         42.21   

Equity, Warrants and Other Investments

     2,940,090         0.96        154,872         0.06   

Embedded derivative— Notes Payable

     —           —          9,071,659         3.33   

Total Return Swap

     —           —          (9,071,659      (3.33
  

 

 

    

 

 

   

 

 

    

 

 

 

Total

   $ 307,364,949         100.00   $ 272,114,164         100.00
  

 

 

    

 

 

   

 

 

    

 

 

 

The following table shows the portfolio composition by industry grouping at fair value at September 30, 2016:

 

     Investments at
Fair Value
     Percentage of
Total Portfolio
 

Entertainment and Leisure

   $ 40,904,257         15.48

Automobiles and Components

     30,193,419         11.43   

Telecommunications

     30,139,384         11.41   

Business Services

     18,782,196         7.11   

Oil and Gas

     18,200,001         6.89   

Healthcare-Products/Services

     17,940,194         6.79   

Media

     16,000,000         6.06   

Construction & Building

     15,840,000         6.00   

Trucking and Leasing

     13,992,002         5.30   

Oilfield Services

     13,985,609         5.29   

Industrial

     11,340,000         4.29   

Cable

     11,219,766         4.25   

Retail

     9,700,000         3.67   

Information Technology

     8,439,202         3.19   

Utilities

     7,518,750         2.84   
  

 

 

    

 

 

 

Total

   $ 264,194,780         100.00
  

 

 

    

 

 

 

 

17


Table of Contents

CM Finance Inc and subsidiaries

Notes to Consolidated Financial Statements (unaudited)

September 30, 2016

Note 4. Investments (Continued)

 

The following table shows the portfolio composition by industry grouping at fair value at June 30, 2016:

 

     Investments at
Fair Value
     Percentage of
Total Portfolio
 

Entertainment and Leisure

   $ 52,963,600         19.46

Telecommunications

     30,027,130         11.04   

Industrial

     21,664,000         7.96   

Automobiles and Components

     21,447,155         7.88   

Healthcare-Products/Services

     18,815,326         6.92   

Oil and Gas

     16,900,001         6.21   

Construction & Building

     16,080,000         5.91   

Media

     16,000,000         5.88   

Oilfield Services

     14,883,128         5.47   

Trucking and Leasing

     13,662,660         5.02   

Business Services

     13,274,859         4.88   

Cable

     11,106,434         4.08   

Information Technology

     9,771,121         3.59   

Services

     8,000,000         2.94   

Utilities

     7,518,750         2.76   
  

 

 

    

 

 

 

Total

   $ 272,114,164         100.00
  

 

 

    

 

 

 

The following table shows the portfolio composition by geographic grouping at fair value at September 30, 2016:

 

     Fair Value      Percentage
Total Portfolio
 

U.S. Midwest

   $ 81,582,666         30.88

U.S. Southwest

     65,514,419         24.80   

U.S. West

     35,062,017         13.27   

U.S. Mid-Atlantic

     32,957,653         12.47   

U.S. Southeast

     24,638,823         9.33   

Europe

     16,000,000         6.06   

U.S. Northeast

     8,439,202         3.19   
  

 

 

    

 

 

 

Total

   $ 264,194,780         100.00
  

 

 

    

 

 

 

The following table shows the portfolio composition by geographic grouping at fair value at June 30, 2016:

 

     Fair Value      Percentage
Total Portfolio
 

U.S. Midwest

   $ 71,127,499         26.14

U.S. Southwest

     70,167,462         25.79   

U.S. West

     33,762,017         12.41   

U.S. Mid-Atlantic

     33,681,856         12.38   

U.S. Northeast

     27,771,121         10.20   

U.S. Southeast

     19,604,209         7.20   

Europe

     16,000,000         5.88   
  

 

 

    

 

 

 

Total

   $ 272,114,164         100.00
  

 

 

    

 

 

 

 

18


Table of Contents

CM Finance Inc and subsidiaries

Notes to Consolidated Financial Statements (unaudited)

September 30, 2016

Note 4. Investments (Continued)

 

The Company’s primary investment objective is to maximize total return to shareholders in the form of current income and capital appreciation by investing directly in debt and related equity of privately held lower middle-market companies to help these companies fund acquisitions, growth or refinancing. During the three months ended September 30, 2016, the Company made investments in new and existing portfolio companies of approximately $19.3 million and $5.0 million, respectively, to which it was not previously contractually committed to provide financial support. During the three months ended September 30, 2016, the Company did not make investments in companies to which it was previously committed to provide financial support. The details of the Company’s investments have been disclosed on the Unaudited Consolidated Schedule of Investments.

c. Derivatives

Derivative contracts include total return swaps and embedded derivatives in Notes Payable. The Company enters into derivative contracts as part of its investment strategies.

The Company and UBS entered into two TRS transactions whereby the Company will receive the total return of the Term Notes and the Revolving Notes (as defined in Note 5) purchased by UBS and pay the Financing Rate and the Revolver Financing Rate (both as defined in Note 5). Therefore, amounts required for the future satisfaction of the swaps may be greater or less than the amount recorded. Realized and change in unrealized gains and losses on total return swaps, if any, are included in the net realized gain or loss on derivatives, and net change in unrealized appreciation (depreciation) on derivatives in the Unaudited Consolidated Statements of Operations.

In connection with the TRS transactions the Company entered into an ISDA Agreement with UBS. The ISDA Agreement includes provisions for general obligations, representations, collateral and events of default or termination. Under an ISDA Agreement, the Company typically may offset with the counterparty certain derivative payable and/or receivable with collateral held and/or posted and create one single net payment (close-out netting) in the event of default or termination.

The Company’s ISDA Agreement may contain provisions for early termination of OTC derivative transactions in the event the net assets of the Company decline below specific levels (“net asset contingent features”). If these levels are triggered, the Company’s counterparty has the right to terminate such transaction and require the Company to pay or receive a settlement amount in connection with the terminated transaction.

The Company has determined that each of the Term Notes payable from SPV to UBS (discussed further in Note 5) contain an embedded derivative. SPV is obligated to pay UBS the net appreciation (depreciation) of the SPV Assets, as defined below, as well as pay any income generated by the SPV Assets until maturity. Therefore, amounts required for the future satisfaction of the note may be greater or less than the amount recorded. Realized and change in unrealized gains and losses on the embedded derivatives are included in the net realized gain or loss on derivatives, and net change in unrealized appreciation (depreciation) on derivatives in the Unaudited Consolidated Statements of Operations.

The following table reflects the fair value and notional amount or number of contracts of the Company’s derivative contracts, none of which were designated as hedging instruments under U.S. GAAP, which are presented on a gross basis, at September 30, 2016.

 

     Assets      Liabilities      Notional      Contracts  

Credit Risk:

           

Total Return Swaps

   $ —         $ 8,859,132         152,000,000         2   

Embedded derivatives

           

Notes Payable

     8,859,132         —           152,000,000         2   
  

 

 

    

 

 

       

Gross fair value of derivative contracts

   $ 8,859,132       $ 8,859,132         

Counterparty netting

     —           —           
  

 

 

    

 

 

       

Net fair value of derivative contracts

     8,859,132         8,859,132         

Collateral not offset

     —           —           
  

 

 

    

 

 

       

Net amount

   $ 8,859,132       $ 8,859,132         
  

 

 

    

 

 

       

 

19


Table of Contents

CM Finance Inc and subsidiaries

Notes to Consolidated Financial Statements (unaudited)

September 30, 2016

Note 4. Investments (Continued)

 

The following table reflects the fair value and notional amount or number of contracts of the Company’s derivative contracts, none of which were designated as hedging instruments under U.S. GAAP, which are presented on a gross basis, at June 30, 2016.

 

     Assets      Liabilities      Notional      Contracts  

Credit Risk:

           

Total Return Swaps

   $ —         $ 9,071,659         152,000,000         2   

Embedded derivatives

           

Notes Payable

     9,071,659         —           152,000,000         2   
  

 

 

    

 

 

       

Gross fair value of derivative contracts

   $ 9,071,659       $ 9,071,659         

Counterparty netting

     —           —           
  

 

 

    

 

 

       

Net fair value of derivative contracts

     9,071,659         9,071,659         

Collateral not offset

     —           —           
  

 

 

    

 

 

       

Net amount

   $ 9,071,659       $ 9,071,659         
  

 

 

    

 

 

       

The following table reflects the amount of gains (losses) on derivatives included in the Unaudited Consolidated Statements of Operations for the three months ended September 30, 2016 and September 30, 2015, respectively. None of the derivatives were designated as hedging instruments under U.S. GAAP.

 

     Included in net change in unrealized appreciation (depreciation) on
investments and derivatives
 
     For the three months ended September 30,  
     2016      2015  

Total Return Swaps

   $ 212,527       $ (1,285,565

Embedded derivatives

     

Notes Payable

     (212,527      1,285,565   
  

 

 

    

 

 

 

Total

   $ —         $ —     
  

 

 

    

 

 

 

d. Fair Value Measurements

ASC 820 defines fair value as the price that would be received to sell an asset, or paid to transfer a liability, in an orderly transaction between market participants at the measurement date. ASC 820 also establishes a framework for measuring fair value and a valuation hierarchy that prioritizes the inputs used in the valuation of an asset or liability based upon their transparency. The valuation hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (Level 1) and the lowest priority to unobservable inputs (Level 3). Classification within the hierarchy is based upon the lowest level of input that is significant to the fair value measurement. The Company’s assets and liabilities measured at fair value have been classified in the following three categories:

Level 1 – valuation is based on unadjusted quoted prices in active markets for identical assets or liabilities that the Company has the ability to access at the measurement date.

Level 2 – valuation is based on inputs other than quoted prices included within Level 1 that are observable for the asset or liability, either directly or indirectly, such as (a) quoted prices for similar assets or liabilities in active markets; (b) quoted prices for identical or similar assets or liabilities in markets that are not active, that is, markets in which there are few transactions for the asset or liability, the prices are not current, or price quotations vary substantially either over time or among market makers, or in which little information is released publicly; (c) inputs other than quoted prices that are observable for the asset or liability; or (d) inputs that are derived principally from or corroborated by observable market data by correlation or other means.

Level 3 – valuation is based on unobservable inputs for the asset or liability. Unobservable inputs are used to measure fair value to the extent that observable inputs are not available, thereby allowing for situations in which there is little, if any, market activity for the asset or liability at the measurement date. However, the fair value measurement objective remains the same, that is, an exit price from the perspective of a market participant that holds the asset or owes the liability. Therefore, unobservable inputs reflect the Company’s own assumptions about the assumptions that market participants would use in pricing the asset or liability, including assumptions about risk. Unobservable inputs are developed based on the best information available under the circumstances, which might include the Company’s own data. The Company’s own data used to develop unobservable inputs is adjusted if information is reasonably available without undue cost and effort that indicates that market participants would use different assumptions.

The availability of observable inputs can vary from security to security and is affected by a wide variety of factors, including, for example, the type of security, whether the security is new and not yet established in the marketplace, the liquidity of the market and other characteristics particular to the security. To the extent that valuation is based on models or inputs that are less observable or unobservable in the market, the determination of fair value requires more judgment. Accordingly, the degree of judgment exercised in determining fair value is greatest for instruments categorized in Level 3.

 

20


Table of Contents

CM Finance Inc and subsidiaries

Notes to Consolidated Financial Statements (unaudited)

September 30, 2016

Note 4. Investments (Continued)

 

Estimates of fair value for cash and restricted cash are measured using observable, quoted market prices, or Level 1 inputs. All other fair value significant estimates are measured using unobservable inputs, or Level 3 inputs.

The following table summarizes the classifications within the fair value hierarchy of the Company’s assets and liabilities measured at fair value as of September 30, 2016:

 

     Level 1      Level 2      Level 3      Total  

Assets

           

Investments

           

Senior Secured First Lien Debt Investments

   $ —         $ —         $ 166,803,587       $ 166,803,587   

Senior Secured Second Lien Debt Investments

     —           —           97,236,169         97,236,169   

Equity, Warrants and Other Investments

     —           —           155,024         155,024   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total Investments

     —           —           264,194,780         264,194,780   

Derivatives

           

Embedded derivative

           

Notes Payable

     —           —           8,859,132         8,859,132   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total Derivatives

     —           —           8,859,132         8,859,132   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total Assets

   $ —         $ —         $ 273,053,912       $ 273,053,912   
  

 

 

    

 

 

    

 

 

    

 

 

 

Liabilities

           

Derivatives

           

Total Return Swaps

   $ —         $ —         $ (8,859,132    $ (8,859,132
  

 

 

    

 

 

    

 

 

    

 

 

 

Total Derivatives

     —           —           (8,859,132      (8,859,132

Total Liabilities

   $ —         $ —         $ (8,859,132    $ (8,859,132
  

 

 

    

 

 

    

 

 

    

 

 

 

The following table summarizes the classifications within the fair value hierarchy of the Company’s assets and liabilities measured at fair value as of June 30, 2016:

 

     Level 1      Level 2      Level 3      Total  

Assets

           

Investments

           

Senior Secured First Lien Debt Investments

   $ —         $ —         $ 157,088,252       $ 157,088,252   

Senior Secured Second Lien Debt Investments

     —           —           114,871,040         114,871,040   

Equity, Warrants and Other Investments

     —           —           154,872         154,872   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total Investments

     —           —           272,114,164         272,114,164   

Derivatives

           

Embedded derivative

           

Notes Payable

     —           —           9,071,659         9,071,659   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total Derivatives

     —           —           9,071,659         9,071,659   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total Assets

   $ —         $ —         $ 281,185,823       $ 281,185,823   
  

 

 

    

 

 

    

 

 

    

 

 

 

Liabilities

           

Derivatives

           

Total Return Swaps

   $ —         $ —         $ (9,071,659    $ (9,071,659
  

 

 

    

 

 

    

 

 

    

 

 

 

Total Derivatives

     —           —           (9,071,659      (9,071,659

Total Liabilities

   $ —         $ —         $ (9,071,659    $ (9,071,659
  

 

 

    

 

 

    

 

 

    

 

 

 

 

21


Table of Contents

CM Finance Inc and subsidiaries

Notes to Consolidated Financial Statements (unaudited)

September 30, 2016

Note 4. Investments (Continued)

 

The following table provides a reconciliation of the beginning and ending balances for investments that use Level 3 inputs for the three months ended September 30, 2016:

 

     Senior Secured
First Lien
Debt Investments
     Senior Secured
Second Lien
Debt Investments
     Equity, Warrants
and Other
Investments
     Total
Investments
 

Balance as of June 30, 2016

   $ 157,088,252       $ 114,871,040       $ 154,872       $ 272,114,164   

Purchases (including PIK interest)

     24,280,175         —           —           24,280,175   

Sales

     (15,220,366      (18,000,000      —           (33,220,366

Amortization

     531,692         154,961         —           686,653   

Net realized gains (losses)

     (6,777,231      —           (1,251,058      (8,028,289

Transfers in

     —           —           —           —     

Transfers out

     —           —           —           —     

Net change in unrealized (depreciation) appreciation

     6,901,065         210,168         1,251,210         8,362,443   
  

 

 

    

 

 

    

 

 

    

 

 

 

Balance as of September 30, 2016

   $ 166,803,587       $ 97,236,169       $ 155,024       $ 264,194,780   
  

 

 

    

 

 

    

 

 

    

 

 

 

Change in unrealized gains (losses) relating to assets and liabilities still held as of September 30, 2016

   $ 175,079       $ 199,006       $ 152         374,237   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

     Total
Return
Swaps
     Embedded
derivatives-
Notes
Payable
     Total
Derivatives
 

Balance as of June 30, 2016

   $ (9,071,659    $ 9,071,659       $ —     

Net change in unrealized (depreciation) appreciation

     212,527         (212,527      —     
  

 

 

    

 

 

    

 

 

 

Balance as of September 30, 2016

   $ (8,859,132    $ 8,859,132       $ —     
  

 

 

    

 

 

    

 

 

 

Change in unrealized gains (losses) relating to assets and liabilities still held as of September 30, 2016

   $ 212,527       $ (212,527    $ —     
  

 

 

    

 

 

    

 

 

 

The following table provides a reconciliation of the beginning and ending balances for investments that use Level 3 inputs for the three months ended September 30, 2015:

 

     Senior Secured
First Lien
Debt Investments
    Senior Secured
Second Lien
Debt Investments
    Unsecured
Debt
    Equity, Warrants
and Other
Investments
    Total
Investments
 

Balance as of June 30, 2015

   $ 165,068,123      $ 156,420,966      $ 8,280,000      $ 554,767      $ 330,323,856   

Purchases (including PIK interest)

     25,646,989        9,975,000        4,196,250        —          39,818,239   

Sales

     (35,379,364     (7,500,000     (1,875,000     —          (44,754,364

Amortization

     350,603        240,910        83,039        —          674,552   

Net realized gains (losses)

     75,872        —          119,448        —          195,320   

Transfers in

     —          —          —          —          —     

Transfers out

     —          —          —          —          —     

Net change in unrealized (depreciation) appreciation

     (1,597,214     (3,204,726     6,263        (100,000     (4,895,677
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of September 30, 2015

   $ 154,165,009      $ 155,932,150      $ 10,810,000      $ 454,767      $ 321,361,926   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Change in unrealized gains (losses) relating to assets and liabilities still held as of September 30, 2015

   $ (1,531,375   $ (3,143,913   $ 6,263      $ (100,000   $ (4,769,025
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

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Table of Contents

CM Finance Inc and subsidiaries

Notes to Consolidated Financial Statements (unaudited)

September 30, 2016

Note 4. Investments (Continued)

 

     Total
Return
Swaps
     Embedded
derivatives -
Notes
Payable
     Total
Derivatives
 

Balance as of June 30, 2015

   $ (1,845,768    $ 1,845,768       $ —     

Net change in unrealized (depreciation) appreciation

     (1,285,565      1,285,565         —     
  

 

 

    

 

 

    

 

 

 

Balance as of September 30, 2015

   $ (3,131,333    $ 3,131,333       $ —     
  

 

 

    

 

 

    

 

 

 

Change in unrealized gains (losses) relating to assets and liabilities still held as of September 30, 2015

   $ (1,285,565    $ 1,285,565       $ —     
  

 

 

    

 

 

    

 

 

 

Transfers into Level 3 during or at the end of the reporting period are reported under Level 1 or Level 2 as of the beginning of the period. Transfers out of Level 3 during or at the end of the reporting period are reported under Level 3 as of the beginning of the period. Changes in unrealized gains (losses) relating to Level 3 instruments are included in net change in unrealized (depreciation) appreciation on investments and derivatives on the Unaudited Consolidated Statements of Operations.

During the three months ended September 30, 2016 and September 30, 2015, the Company did not transfer any investments among Levels 1 and 2 and 3.

The following tables present the ranges of significant unobservable inputs used to value the Company’s Level 3 investments as of September 30, 2016 and June 30, 2016. These ranges represent the significant unobservable inputs that were used in the valuation of each type of investment. These inputs are not representative of the inputs that could have been used in the valuation of any one investment. For example, the highest market yield presented in the table for senior secured notes is appropriate for valuing a specific investment but may not be appropriate for valuing any other investment. Accordingly, the ranges of inputs presented below do not represent uncertainty in, or possible ranges of, fair value measurements of the Company’s Level 3 investments.

 

    Fair Value as of     Valuation   Unobservable   Weighted      
    September 30, 2016     Methodology   Input(s)   Average     Range

Senior Secured First Lien Debt Investments

  $ 148,475,768      Yield Analysis   Market Yields     11.8%      5.6% - 32.3%

Senior Secured First Lien Debt Investments

    18,327,819      Recent Purchase   Recent Purchase     N/A      N/A

Senior Secured Second Lien Debt Investments

    97,236,169      Yield Analysis   Market Yields     16.9%      7.3% - 31.6%

Equity, Warrants and Other Investments

    155,024      EV Multiple   LTM EBITDA     7.9x      7.9x - 7.9x

Total Return Swaps

    (8,859,132   Other Approach   Intrinsic Value     N/A      N/A

Embedded derivatives—Note Payable

    8,859,132      Other Approach   Intrinsic Value     N/A      N/A
    Fair Value as of     Valuation   Unobservable   Weighted      
    June 30, 2016     Methodology   Input(s)   Average     Range

Senior Secured First Lien Debt Investments

  $ 143,813,393      Yield Analysis   Market Yields     10.8   9.5% - 31.5%

Senior Secured First Lien Debt Investments

    13,274,859      Recent Purchase   Recent Purchase     N/A      N/A

Senior Secured Second Lien Debt Investments

    114,871,040      Yield Analysis   Market Yields     16.1   8.1% - 29.7%

Equity, Warrants and Other Investments

    154,872      EV Multiple   LTM EBITDA     7.9x      7.5x - 7.9x

Total Return Swaps

    (9,071,659   Other Approach   Intrinsic value     N/A      N/A

Embedded derivatives—Note Payable

    9,071,659      Other Approach   Intrinsic value     N/A      N/A

 

23


Table of Contents

CM Finance Inc and subsidiaries

Notes to Consolidated Financial Statements (unaudited)

September 30, 2016

Note 4. Investments (Continued)

 

Fair value measurements categorized within Level 3 are sensitive to changes in the assumptions or methodology used to determine fair value and such changes could result in a significant increase or decrease in the fair value. Significant increases in illiquidity discounts, PIK discounts and market yields would result in significantly lower fair value measurements.

Note 5. Notes Payable

On May 23, 2013, as amended on June 6, 2013, December 4, 2013 and September 26, 2014, July 20, 2015 and August 14, 2015, the Company, through SPV, entered into a $102.0 million financing transaction (the “Term Facility”) due December 5, 2018 with UBS. The Term Facility is collateralized by the portion of the Company’s assets held by SPV (the “SPV Assets”) and pledged as collateral as noted in the Consolidated Schedule of Investments. The Company will pay interest on the face amount of the Term Facility at a rate of one month LIBOR plus a spread of 2.75% per annum (the “Financing Rate”). Prior to September 26, 2014, the Company paid interest on the Term Facility at a rate of one month LIBOR plus a spread of 2.85% per annum.

On December 4, 2013, as amended on September 26, 2014 and July 17, 2015, the Company, through SPV, entered into a $50.0 million revolving financing (the “Revolving Financing” and together with the Term Facility, the “Financing Facility”), which expires on December 5, 2016. The Revolving Financing bears interest at a fixed rate of 2.00% per annum on drawn amounts and 0.50% per annum on any undrawn portion. Prior to September 26, 2014, the rate on drawn amounts was 2.10% per annum through December 4, 2014, and 1.60% thereafter. As of September 30, 2016 and June 30, 2016, $14.5 and $30.5 million was outstanding on the Revolving Financing, respectively.

This financing transaction was initially executed in four steps:

First, the Company organized SPV, a consolidated wholly owned bankruptcy remote special purpose vehicle in the Cayman Islands to purchase the SPV Assets through (i) the issuance and sale of notes secured by the SPV Assets (the “Term Notes”) to UBS and the Company and (ii) the transfer of cash to the Company. UBS purchased Term Notes with a face value of $76.5 million, which represent 51% of the Term Notes issued and outstanding, for $76.5 million in cash. The Company purchased Term Notes with a face value of $73.5 million (which are eliminated in consolidation), which represent 49% of the Term Notes issued and outstanding. Under the terms of the indenture under which the Term Notes were issued (the “Indenture”), the holders of the Term Notes are entitled to (i) periodic interest payments equal to their pro rata portion of the interest collected on the assets held by SPV and (ii) their pro-rata portion of the net appreciation (depreciation) on the SPV Assets at maturity (the “Total Return of the Term Notes”). This represents the embedded derivative in the Term Notes payable from SPV to UBS. On September 26, 2014, the Company increased the size of the Term Facility to $102.0 million. In connection with the upsize, UBS purchased additional Term Notes with a face value of $25.5 million for $25.5 million in cash. The Company also purchased additional Term Notes with a face value of $24.5 million.

Second, the Company and UBS entered into a TRS transaction whereby the Company will receive the Total Return of the Term Notes purchased by UBS and pay the Financing Rate.

Third, SPV issued and sold an additional $50.0 million notes (the “Revolving Notes”) together with the Term Notes, the “Notes”, secured by the SPV Assets to UBS. Cash is only exchanged when the Revolving Notes are drawn. Under the terms of the Indenture under which the Revolving Notes were issued (the “Revolver Indenture”), the holders of the Revolving Notes are entitled to (i) periodic interest payments equal to their pro rata portion of the interest collected on the SPV Assets and (ii) their pro-rata portion of the net appreciation (depreciation) on the SPV Assets at maturity (the “Total Return of the Revolving Notes”). This represents the embedded derivative in the Revolving Notes payable from SPV to UBS.

Fourth, the Company and UBS entered into another TRS transaction whereby the Company will receive the Total Return of the Revolving Notes purchased by UBS and pay the Revolver Financing Rate.

The fair value of the Company’s Notes Payable is estimated based on the rate at which similar facilities would be priced. At September 30, 2016 and June 30, 2016, the fair value of the Notes Payable was estimated at $116.5 million and $132.5 million, respectively, which the Company concluded was a Level 3 fair value.

Cash, restricted (as shown on the Unaudited Consolidated Statements of Assets and Liabilities) is held by the trustee of the Financing Facility and is restricted to purchases of investments by SPV that must meet certain eligibility criteria identified by the Indenture. As of September 30, 2016, SPV had assets of $216.4 million, which included $210.1 million of the Company’s portfolio investments at fair value, $2.2 million of accrued interest receivable and $4.1 million in cash held by the trustee of the Financing Facility. As of June 30, 2016,

 

24


Table of Contents

CM Finance Inc and subsidiaries

Notes to Consolidated Financial Statements (unaudited)

September 30, 2016

Note 5. Notes Payable (Continued)

 

SPV had assets of $248.2 million, which included $241.8 million of the Company’s portfolio investments at fair value, $1.9 million of accrued interest receivable and $4.5 million in cash held by the trustee of the Financing Facility. For the three months ended September 30, 2016, the weighted average outstanding debt balance and the weighted average stated interest rate under the Financing Facility was $123.6 million and 3.18%, respectively. For the three months ended September 30, 2015, the weighted average outstanding debt balance and the weighted average stated interest rate under the Financing Facility was $142.2 million and 2.76%, respectively.

Note 6. Indemnification, Guarantees, Commitments and Contingencies

In the normal course of business, the Company enters into contracts that provide a variety of representations and warranties and general indemnifications. Such contracts include those with certain service providers, brokers and trading counterparties. Any exposure to the Company under these arrangements is unknown as it would involve future claims that may be made against the Company; however, based on the Company’s experience, the risk of loss is remote and no such claims are expected to occur. As such, the Company has not accrued any liability in connection with such indemnifications.

The Company’s Board of Directors declared the following quarterly distributions:

 

Declared

  Ex-Date   Record Date   Pay Date   Amount     Quarter

August 25, 2016

  September 14, 2016   September 16, 2016   October 6, 2016   $ 0.3516      1st 2017

November 3, 2016

  December 14, 2016   December 16, 2016   January 5, 2017   $ 0.3516      2nd 2017

November 3, 2016

  March 15, 2017   March 17, 2017   April 6, 2017   $ 0.2500      3rd 2017

Loans purchased by the Company may include revolving credit agreements or other financing commitments obligating the Company to advance additional amounts on demand. The Company generally sets aside sufficient liquid assets to cover its unfunded commitments, if any.

The following table details the unfunded commitments as of September 30, 2016:

 

Investments

   Unfunded
Commitment
     Fair Value      Annual
Non-use
Fee
     Expiration Date  

AAR Intermediate Holdings, LLC

   $ 990,099       $ —           0.50         9/30/2021   
  

 

 

    

 

 

       

Total Unfunded Commitments

   $ 990,099       $ —           
  

 

 

    

 

 

       

As of June 30, 2016, the Company did not have any unfunded commitments.

Note 7. Agreements and Related Party Transactions

Related Party Transactions

As of September 30, 2016, Mr. Michael C. Mauer, the Company’s Chief Executive Officer, and Mr. Christopher E. Jansen, the Company’s President and Secretary and members of the Company’s board of directors together owned approximately 1.60% of the Company’s outstanding common stock, and Messrs. Mauer and Jansen also hold a 42.0% interest in the Adviser.

As of September 30, 2016, Stifel Venture Corp. (“Stifel”) owned approximately 16.0% of the Company’s outstanding common stock, and also holds a 20.0% interest in the Adviser.

As of September 30, 2016, the Cyrus Funds (“Cyrus”) owned approximately 27.9% of the Company’s outstanding common stock and a 38.0% economic interest in the Adviser.

In connection with the Offering, the Adviser, paid $3.45 million or 50.0% of the total underwriting costs, and offering costs in excess of the $1.2 million paid by Company.

 

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Table of Contents

CM Finance Inc and subsidiaries

Notes to Consolidated Financial Statements (unaudited)

September 30, 2016

Note 7. Agreements and Related Party Transactions (Continued)

 

Investment Advisory Agreement

Pursuant to the Advisory Agreement, the Company has agreed to pay to the Adviser a base management fee of 1.75% of gross assets, as adjusted, including assets purchased with borrowed funds or other forms of leverage and excluding cash and cash equivalents and “fair value of derivatives associated with the Company’s financing”, and an incentive fee consisting of two parts.

The first part of the incentive fee, which is calculated and payable quarterly in arrears, equals 20.0% of the “pre-incentive fee net investment income” (as defined in the agreement) for the immediately preceding quarter, subject to a hurdle rate of 2.0% per quarter (8.0% annualized), and is subject to a “catch-up” feature. The incentive fee is subject to a total return requirement, which provides that no incentive fee in respect of the Company’s pre-incentive fee net investment income will be payable except to the extent 20.0% of the cumulative net increase in net assets resulting from operations over the then current and 12 preceding quarters exceeds the cumulative incentive fees accrued and/or paid for the 12 preceding quarters. The net pre-incentive fee investment income used to calculate this part of the incentive fee is also included in the amount of the Company’s gross assets used to calculate the 1.75% base management fee.

The second part of the incentive fee is calculated and payable in arrears as of the end of each calendar year and equals 20.0% of the aggregate cumulative realized capital gains from inception through the end of each calendar year, computed net of aggregate cumulative realized capital losses and aggregate cumulative unrealized capital depreciation through the end of such year, less the aggregate amount of any previously paid capital gain incentive fees.

The Adviser has agreed to permanently waive: (i) all or portions of base management fees through December 31, 2014, to the extent required to support an annualized dividend yield of 9.0% per annum based on the price per share of the Company’s common stock in the Offering of $15.00, and (ii) all or portions of the incentive fee for 2014, 2015 and 2016, to the extent required to support an annualized dividend yield of 9.0%, 9.25% and 9.375% per annum, respectively, based on the price per share of the Company’s common stock in of the Offering of $15.00. Fees permanently waived by the Adviser are not subject to future repayment or recoupment by the Company.

For the three months ended September 30, 2016, $1,211,535 in base management fees were earned by the Adviser, of which $1,211,535 was payable at September 30, 2016. For the three months ended September 30, 2015, $1,452,157 in base management fees were earned by the Adviser, of which $1,452,157 was payable at September 30, 2015.

For the three months ended September 30, 2016, the Company incurred $0 of incentive fees related to pre-incentive fee net investment income. As of September 30, 2016, $7,388 of such incentive fees are currently payable to the Adviser and $268,152 of pre-incentive fees incurred by the Company were generated from deferred interest (i.e. PIK and certain discount accretion) and are not payable until such amounts are received in cash. For the three months ended September 30, 2015, the Company incurred $1,229,032 of incentive fees related to pre-incentive fee net investment income, of which $0 was waived. As of September 30, 2015, $1,101,891 of such incentive fees were payable to the Adviser and $401,807 of pre-incentive fees incurred by the Company were generated from deferred interest (i.e. PIK and certain discount accretion) and are not payable until such amounts are received in cash.

The capital gains incentive fee consists of fees related to both realized gains and unrealized gains. As of September 30, 2016, there was no capital gains incentive fee earned or payable to the Adviser under the Advisory Agreement. As of June 30, 2016, there was no capital gains incentive fee earned or payable to the Adviser under the Advisory Agreement.

With respect to the incentive fee expense accrual relating to the capital gains incentive fee, U.S. GAAP requires that the capital gains incentive fee accrual consider the cumulative aggregate unrealized appreciation in the calculation, as a capital gains incentive fee would be payable if such unrealized appreciation were realized, even though such unrealized appreciation is not permitted to be considered in calculating the fee actually payable under the Advisory Agreement.

The Advisory Agreement provides that, absent willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of the reckless disregard of its duties and obligations under the Advisory Agreement, the Adviser and its officers, managers, partners, agents, employees, controlling persons and members, and any other person or entity affiliated with it, are entitled to indemnification from the Company for any damages, liabilities, costs and expenses (including reasonable attorneys’ fees and amounts reasonably paid in settlement) arising from the rendering of the Adviser’s services under the Advisory Agreement or otherwise as the Adviser.

 

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Table of Contents

CM Finance Inc and subsidiaries

Notes to Consolidated Financial Statements (unaudited)

September 30, 2016

Note 7. Agreements and Related Party Transactions (Continued)

 

Prior to the Company’s election to be regulated as a BDC on February 5, 2014, no base management or incentive fees were due and payable.

Administration Agreement

The Company entered into an administration agreement with the Adviser pursuant to which the Adviser furnishes the Company with office facilities and equipment and will provide the Company with the clerical, bookkeeping, recordkeeping and other administrative services necessary to conduct day-to-day operations. Under this administration agreement, the Adviser will perform, or oversee the performance of, its required administrative services, which includes, among other things, being responsible for the financial records which it is required to maintain and preparing reports to its shareholders and reports filed with the SEC. Under an administration agreement with the Adviser, the Adviser provides the Company with the Company’s other accounting and back-office professionals, equipment and clerical, bookkeeping, recordkeeping and other administrative services. The Investment Adviser has also retained the services of accounting and back office professionals on an as needed basis through a services agreement with the Cyrus Funds to assist the Adviser in fulfilling certain of its obligations to the Company under the administration agreement. The Company incurred costs of $268,242 under the administration agreement for the three months ended September 30, 2016. The Company incurred costs of $276,951 under the administration agreement for the three months ended September 30, 2015.

As of September 30, 2016 and June 30, 2016, the Company recorded $106,741 and $120,000, respectively, in accrued expenses and other liabilities on its Unaudited Consolidated Statements of Assets and Liabilities for reimbursement of expenses owed to the Adviser under the administration agreement.

License Agreement

The Company has entered into a license agreement with the Adviser under which the Adviser has agreed to grant the Company a non-exclusive, royalty-free license to use the name “CM Finance.” Under this agreement, the Company has a right to use the “CM Finance” name for so long as the Adviser or one of its affiliates remains the Adviser. Other than with respect to this limited license, the Company has no legal right to the “CM Finance” name.

Stifel Arrangement

In December 2013, the Company entered into an arrangement pursuant to which Stifel made a capital contribution to the Company on February 5, 2014 and the Company granted Stifel certain rights, such as a right to nominate for election a member of the Company’s board of directors. Stifel has not exercised its right to nominate for election a member of the Company’s board of directors. Stifel does not have any rights to exercise a controlling influence over the Company’s day-to-day operations or the investment management function of the Adviser.

Five of the investment professionals employed by the Adviser as part of the investment team are also employees of Stifel. Although these investment professionals dedicate substantially all of their time to the business and activities of the Adviser, they are dual employees of both Stifel and the Adviser, and as a result, may continue to engage in investment advisory activities for Stifel.

Note 8. Directors Fees

Each of the Company’s four independent directors receive (i) an annual fee of $75,000, and (ii) $2,500 plus reimbursement of reasonable out-of-pocket expenses incurred in connection with attending in person or telephonically each regular board of directors meeting and each special telephonic meeting. The Company’s independent directors also receive $1,000 plus reimbursement of reasonable out-of-pocket expenses incurred in connection with each committee meeting attended in person and each telephonic committee meeting. The chairman of the audit committee receives an annual fee of $7,500. The chairperson of the valuation committee, the nominating and corporate governance committee and the compensation committee receives an annual fee of $2,500, $2,500 and $2,500, respectively. The Company has obtained directors’ and officers’ liability insurance on behalf of the Company’s directors and officers. Independent directors have the option of having their directors’ fees paid in shares of the Company’s common stock issued at a price per share equal to the greater of net asset value or the market price at the time of payment. For the three months ended September 30, 2016 and September 30, 2015, the Company recorded directors’ fees of $100,000 and $114,750, respectively, of which $0 and $0 were payable at September 30, 2016 and September 30, 2015, respectively.

 

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Table of Contents

CM Finance Inc and subsidiaries

Notes to Consolidated Financial Statements (unaudited)

September 30, 2016

 

Note 9. Earnings Per Share

In accordance with the provisions of ASC Topic 260 – Earnings per Share (“ASC 260”), basic earnings per share is computed by dividing earnings available to common shareholders by the weighted average number of shares outstanding during the period. Other potentially dilutive common shares, and the related impact to earnings, are considered when calculating earnings per share on a diluted basis.

The following table sets forth the computation of the weighted average basic and diluted net increase in net assets per share from operations:

 

Basic and Diluted Net Increase (Decrease) in Net Assets Per Share

 
     Three Months Ended September 30,  
     2016      2015  

Net increase in net assets resulting from operations

   $ 4,304,957       $ 168,163   

Weighted average shares of common stock outstanding

     13,680,817         13,668,193   

Basic/diluted net increase in net assets from operations per share

   $ 0.31       $ 0.01   

Note 10. Distributions

The following table reflects the cash dividend distributions per share that the Company declared and/or paid to its shareholders since the Offering in February 2014. Shareholders of record as of each respective record date were entitled to receive the distribution:

 

Declaration Date

  

Record Date

  

Payment Date

   Amount
Per
Share
 

March 14, 2014

   March 24, 2014    March 31, 2014    $ 0.1812   

May 14, 2014

   June 16, 2014    July 1, 2014    $ 0.3375   

September 4, 2014

   September 18, 2014    October 1, 2014    $ 0.3375   

November 6, 2014

   December 18, 2014    January 5, 2015    $ 0.3375   

January 28, 2015

   March 18, 2015    April 2, 2015    $ 0.3469   

May 6, 2015

   June 8, 2015    July 5, 2015    $ 0.3469   

June 10, 2015*

   September 1, 2015    September 15, 2015    $ 0.4300   

June 10, 2015

   September 18, 2015    October 2, 2015    $ 0.3469   

November 3, 2015

   December 18, 2015    January 5, 2016    $ 0.3469   

February 2, 2016

   March 18, 2016    April 7, 2016    $ 0.3516   

April 28, 2016

   June 17, 2016    July 7, 2016    $ 0.3516   

August 25, 2016

   September 16, 2016    October 6, 2016    $ 0.3516   

November 3, 2016

   December 16, 2016    January 5, 2017    $ 0.3516   

November 3, 2016

   March 17, 2017    April 6, 2017    $ 0.2500   

 

*   Special distribution

 

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Table of Contents

CM Finance Inc and subsidiaries

Notes to Consolidated Financial Statements (unaudited)

September 30, 2016

Note 10. Distributions (Continued)

 

The following table reflects the sources of the cash distributions that the Company has paid on its common stock during the three months ended September 30, 2016 and September 30, 2015:

 

    Three months ended September 30,  
    2016     2015  
    Distribution Amount     Percentage     Distribution Amount     Percentage  

Ordinary income and short-term capital gains

  $ 4,810,208        100   $ 10,619,300        100

Long-term capital gains

    —          —          —          —     
 

 

 

   

 

 

   

 

 

   

 

 

 

Total

  $ 4,810,208        100   $ 10,619,300        100
 

 

 

   

 

 

   

 

 

   

 

 

 

Note 11. Share Transactions

The following table summarizes the total shares issued for the three months ended September 30, 2016 and September 30, 2015.

 

     Three months ended September 30,  
     2016      2015  
     Shares      Amount      Shares      Amount  

Balance at beginning of period

   $ 13,679,686       $ 200,482,695       $ 13,667,267       $ 200,357,871   

Reinvestments of shareholder distributions

     1,224         10,884         2,686         31,219   
  

 

 

    

 

 

    

 

 

    

 

 

 

Balance at end of period

   $ 13,680,910       $ 200,493,579       $ 13,669,953       $ 200,389,090   
  

 

 

    

 

 

    

 

 

    

 

 

 

Note 12. Financial Highlights

The following represents the per share data and the ratios to average net assets for CM Finance Inc:

 

    Three months ended
September 30, 2016
    Three months ended
September 30, 2015
 

Per Share Data: (1)

   

Net asset value, beginning of period

  $ 11.90      $ 14.41   

Net investment income

    0.29        0.36   

Net realized and unrealized gains (losses)

    0.02        (0.34
 

 

 

   

 

 

 

Net increase in net assets resulting from operations

    0.31        0.02   

Capital transactions (2)

   

Dividends from net investment income

    (0.35     (0.46

Distributions from net realized gains

    —          (0.32
 

 

 

   

 

 

 

Net decrease in net assets resulting from capital transactions

    (0.35     (0.78

Net asset value, end of period

  $ 11.86      $ 13.65   

Market value per share, end of period

  $ 9.10      $ 10.24   

Total return based on market value (3)(4)

    6.51     (19.52 )% 

Shares outstanding at end of period

    13,680,910        13,669,953   

Ratio/Supplemental Data:

   

Net assets, at end of period

  $ 162,255,516      $ 186,530,931   

Ratio of total expenses to average net assets (5)

    8.82     10.34

Ratio of net expenses to average net assets (5)

    8.82     10.34

Ratio of interest expense and fees and amortization of deferred debt issuance costs to average net assets (5)

    3.31     2.76

Ratio of net investment income before fee waiver to average net assets (5)

    9.69     10.07

Ratio of net investment income after fee waiver to average net assets (5)

    9.69     10.07

Total Notes Payable

    116,500,000        151,429,770   

Asset Coverage Ratio (6)

    2.39        2.23   

Portfolio Turnover Rate (4)

    13     12

 

(1)   The per share data was derived by using the shares outstanding during the period.
(2)   The per share data for dividends and distributions declared reflects the actual amount of the dividends and distributions declared per share during the period.
(3)   Total returns are historical and are calculated by determining the percentage change in the market value with all dividends and distributions, if any, reinvested. Dividends and distributions are assumed to be reinvested at prices obtained under the company’s dividend reinvestment plan.
(4)   Not annualized.
(5)   Annualized.
(6)   Asset coverage ratio is equal to (i) the sum of (A) net assets at the end of the period and (B) debt outstanding at the end of the period, divided by (ii) total debt outstanding at the end of the period.

 

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CM Finance Inc and subsidiaries

Notes to Consolidated Financial Statements (unaudited)

September 30, 2016

 

Note 13. Other Fee Income

The other fee income consists of structuring fee income, amendment fee income and royalty income. The following tables summarize the Company’s other fee income for the three months ended September 30, 2016 and September 30, 2015:

 

     Three Months Ended September 30,  
     2016      2015  

Loan Structuring Fee

   $ —         $ —     

Loan Amendment/Consent Fee

     216,467         33,742   

Royalty Income

     —           —     
  

 

 

    

 

 

 

Other Fee Income

   $ 216,467       $ 33,742   
  

 

 

    

 

 

 

Note 14. Tax Information

As of September 30, 2016, the Company’s aggregate investment unrealized appreciation and depreciation based on cost for U.S. federal income tax purposes were as follows:

 

Tax cost

   $ 291,851,505   
  

 

 

 

Gross unrealized appreciation

     1,791,102   

Gross unrealized depreciation

     (29,447,827
  

 

 

 

Net unrealized investment depreciation

   $ (27,656,725
  

 

 

 

As of June 30, 2016, the Company’s aggregate investment unrealized appreciation and depreciation based on cost for U.S. federal income tax purposes were as follows:

 

Tax cost

   $ 308,124,324   
  

 

 

 

Gross unrealized appreciation

     1,123,046   

Gross unrealized depreciation

     (37,133,205
  

 

 

 

Net unrealized investment depreciation

   $ (36,010,159
  

 

 

 

Note 15. Subsequent Events

The Company has evaluated the need for disclosures and/or adjustments resulting from subsequent events through the date the consolidated financial statements were issued.

On November 9, 2016, the Company entered into a 2.5 year, $50 million senior secured revolving credit facility (the “New Revolving Financing”) with Citibank, N.A. (“Citibank”), which is secured by collateral consisting primarily of commercial loans and corporate bonds. The New Revolving Financing will expire on May 1, 2019.

Borrowings under the New Revolving Financing will generally bear interest at a rate per annum equal to LIBOR plus 4.85%. Default interest rate will be equal to the interest rate then in effect plus 2.00%. The New Revolving Financing requires the payment of an unused fee of 2.85% annually for any undrawn amounts below 75% of the New Revolving Financing, and 0.75% annually for any undrawn amounts above 75% of the New Revolving Financing. Borrowings under the New Revolving Financing are based on a borrowing base. The New Revolving Financing generally requires payment of interest on a quarterly basis. All outstanding principal is due upon maturity. The New Revolving Financing also requires mandatory prepayment of interest and principal upon certain events.

Subsequent to the three months ended September 30, 2016 through November 9, 2016, the Company invested $14.5 million in new and existing portfolio companies and received repayment or sales proceeds of $23.0 million.

 

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Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

Some of the statements in this quarterly report on Form 10-Q constitute forward-looking statements, which relate to future events or our future performance or financial condition. The forward-looking statements contained in this quarterly report on Form 10-Q involve risks and uncertainties, including statements as to:

 

    our future operating results;

 

    our business prospects and the prospects of our portfolio companies;

 

    the effect of investments that we expect to make;

 

    our contractual arrangements and relationships with Stifel Venture Corp. (“Stifel”) and certain funds managed by Cyrus Capital Partners, L.P. (“Cyrus Capital”);

 

    our contractual arrangements and relationships with lenders and other third parties;

 

    actual and potential conflicts of interest with CM Investment Partners LLC (the “Adviser”);

 

    the dependence of our future success on the general economy, interest rates and the effects of each on the industries in which we invest;

 

    the ability of our portfolio companies to achieve their objectives or service their debt obligations to us;

 

    the use of borrowed money to finance a portion of our investments;

 

    the adequacy of our financing sources and working capital;

 

    the timing of cash flows, if any, from the operations of our portfolio companies;

 

    the ability of the Adviser to locate suitable investments for us and to monitor and administer our investments;

 

    the ability of the Adviser to attract and retain highly talented professionals;

 

    our ability to qualify and maintain our qualification as a RIC and as a BDC;

 

    our ability to obtain exemptive relief from the SEC;

 

    our ability to obtain an SBIC license; and

 

    the effect of changes to tax legislation and our tax position and other legislative and regulatory changes.

Such forward-looking statements may include statements preceded by, followed by or that otherwise include the words “may,” “might,” “will,” “intend,” “should,” “could,” “can,” “would,” “expect,” “believe,” “estimate,” “anticipate,” “predict,” “potential,” “plan” or similar words.

We have based the forward-looking statements included in this quarterly report on Form 10-Q on information available to us on the date of this report on Form 10-Q. Actual results could differ materially from those anticipated in our forward-looking statements, and future results could differ materially from historical performance. We undertake no obligation to revise or update any forward-looking statements, whether as a result of new information, future events or otherwise, unless required by law or SEC rule or regulation. You are advised to consult any additional disclosures that we may make directly to you or through reports that we in the future may file with the SEC, including annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K.

Overview

CM Finance Inc (“CMFN,” the “Company”, “us”, “we” or “our”), a Maryland corporation formed in May 2013, is a closed-end, externally managed, non-diversified management investment company that has elected to be regulated as a business development company (“BDC”) under the Investment Company Act of 1940, as amended (the “1940 Act”), and intends to elect to be treated as a regulated investment company (“RIC”) under Subchapter M of the Internal Revenue Code, (the “Code”), for U.S. federal income tax purposes.

Our primary investment objective is to maximize total return to stockholders in the form of current income and capital appreciation by investing directly in debt and related equity of privately held lower middle market companies to help these companies fund acquisitions, growth or refinancing. We invest primarily in lower middle-market companies in the form of unitranche loans, standalone first and second lien and mezzanine loans. We may also invest in unsecured debt, bonds and in the equity of portfolio companies through warrants and other instruments.

 

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On February 5, 2014, we priced our initial public offering, selling 7,666,666 shares of our common stock, par value $0.001, including the underwriters’ over-allotment, at a price of $15.00 per share with net proceeds of approximately $111.5 million.

CM Finance LLC, a Maryland limited liability company, commenced operations in March 2012. Immediately prior to our initial public offering, the merger was consummated, whereby CM Finance LLC merged with and into us (the “Merger”). In connection with the Merger, we issued 6,000,000 shares of common stock and $39.8 million in debt to the pre-existing CM Finance LLC investors, consisting of certain funds (the “Cyrus Funds”) managed by Cyrus Capital. CM Finance Inc had no assets or operations prior to completion of the Merger and, as a result, the books and records of CM Finance LLC became our books and records, as the surviving entity. Immediately after the Merger, we issued 2,181,818 shares of our common stock to Stifel in exchange for $32.7 million in cash. We used all of the proceeds of the sale of shares to Stifel, to repurchase 2,181,818 shares of common stock from the Cyrus Funds. Immediately after the completion of the initial public offering, we had 13,666,666 shares outstanding. We also used a portion of the net proceeds of the initial public offering to repay 100% of the debt issued to the Cyrus Funds in connection with the Merger.

Upon our election to be regulated as a BDC on February 5, 2014, we entered into the investment advisory agreement (the “Advisory Agreement”) and the administration agreement (the “Administration Agreement”) with the Adviser as our investment adviser and administrator, respectively.

We consolidate the operations of our wholly-owned subsidiaries, CM Finance SPV Ltd. (“CM SPV”), a special purpose vehicle used to finance certain investments, and CM Portfolio Companies LLC, a taxable subsidiary formed to hold equity securities of portfolio companies organized as pass-through entities while continuing to satisfy the requirements for a RIC under the Code.

Critical accounting policies

Our discussion and analysis of our financial condition and results of operations are based upon our financial statements, which have been prepared in accordance with U.S. generally accepted accounting principles (“GAAP”). The preparation of these financial statements requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses. Changes in the economic environment, financial markets and any other parameters used in determining such estimates could cause actual results to differ. Management considers the following critical accounting policies important to understanding the financial statements. In addition to the discussion below, our critical accounting policies are further described in the notes to our consolidated financial statements.

Valuation of portfolio investments

We value our portfolio investments at fair value based upon the principles and methods of valuation set forth in policies adopted by our board of directors. Fair value is defined as the price that would be received to sell an asset in an orderly transaction between market participants at the measurement date. Market participants are buyers and sellers in the principal (or most advantageous) market for the asset that (a) are independent of us, (b) are knowledgeable, having a reasonable understanding about the asset based on all available information (including information that might be obtained through due diligence efforts that are usual and customary), (c) are able to transact for the asset, and (d) are willing to transact for the asset or liability (that is, they are motivated but not forced or otherwise compelled to do so).

Investments for which market quotations are readily available are valued at such market quotations unless the quotations are deemed not to represent fair value. We generally obtain market quotations from recognized exchanges, market quotation systems, independent pricing services or one or more broker dealers or market makers.

Debt and equity securities for which market quotations are not readily available or for which market quotations are deemed not to represent fair value are valued at fair value as determined in good faith by our board of directors. Because a readily available market value for many of the investments in our portfolio is often not available, we value many of our portfolio investments at fair value as determined in good faith by our board of directors using a consistently applied valuation process in accordance with a documented valuation policy that has been reviewed and approved by our board of directors. Due to the inherent uncertainty and subjectivity of determining the fair value of investments that do not have a readily available market value, the fair value of our investments may differ significantly from the values that would have been used had a readily available market value existed for such investments and may differ materially from the values that we may ultimately realize. In addition, changes in the market environment and other events may have differing impacts on the market quotations used to value some of our investments than on the fair values of our investments for which market quotations are not readily available. Market quotations may also be deemed not to represent fair value in certain circumstances where we believe that facts and circumstances applicable to an issuer, a seller or purchaser, or the market for a

 

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particular security causes current market quotations not to reflect the fair value of the security. Examples of these events could include cases where a security trades infrequently, causing a quoted purchase or sale price to become stale, where there is a “forced” sale by a distressed seller, where market quotations vary substantially among market makers, or where there is a wide bid-ask spread or significant increase in the bid ask spread.

With respect to investments for which market quotations are not readily available, our board of directors undertakes a multi-step valuation process each quarter, as described below:

 

    our quarterly valuation process begins with each portfolio company or investment being initially valued by the members of the Adviser’s investment team responsible for the portfolio investment;

 

    preliminary valuation conclusions are then documented and discussed by our senior management and the Adviser;

 

    on a periodic basis, at least once annually, the valuation for each portfolio investment is reviewed by an independent valuation firm engaged by our board of directors;

 

    the valuation committee of our board of directors then reviews these preliminary valuations and makes a recommendation to our board of directors regarding the fair value of each investment; and

 

    the board of directors then reviews and discusses these preliminary valuations and determines the fair value of each investment in our portfolio in good faith, based on the input of the Adviser, the independent valuation firm and the valuation committee.

Those investments for which market quotations are not readily available or for which market quotations are deemed not to represent fair value are valued utilizing a market approach, an income approach, or both approaches, as appropriate. The market approach uses prices and other relevant information generated by market transactions involving identical or comparable assets or liabilities (including a business). The income approach uses valuation techniques to convert future amounts (for example, cash flows or earnings) to a single present amount (discounted). The measurement is based on the value indicated by current market expectations about those future amounts. In following these approaches, the types of factors that we may take into account in determining the fair value of our investments include, as relevant and among other factors: available current market data, including relevant and applicable market trading and transaction comparables, applicable market yields and multiples, security covenants, call protection provisions, information rights, the nature and realizable value of any collateral, the portfolio company’s ability to make payments, its earnings and discounted cash flows, the markets in which the portfolio company does business, comparisons of financial ratios of peer companies that are public, merger and acquisition comparables, our principal market (as the reporting entity) and enterprise values.

When valuing all of our investments, we strive to maximize the use of observable inputs and minimize the use of unobservable inputs. Inputs refer broadly to the assumptions that market participants would use in pricing an asset, including assumptions about risk. Inputs may be observable or unobservable. Observable inputs are inputs that reflect the assumptions market participants would use in pricing an asset or liability developed based on market data obtained from sources independent of us. Unobservable inputs are inputs that reflect our assumptions about the assumptions market participants would use in pricing an asset or liability developed based on the best information available under the circumstances.

Our investments are categorized based on the types of inputs used in their valuation. The level in the GAAP valuation hierarchy in which an investment falls is based on the lowest level input that is significant to the valuation of the investment in its entirety. Investments are classified by GAAP into the three broad levels as follows:

 

Level I    Investments valued using unadjusted quoted prices in active markets for identical assets.
Level II    Investments valued using other unadjusted observable market inputs, e.g. quoted prices in markets that are not active or quotes for comparable instruments.
Level III    Investments that are valued using quotes and other observable market data to the extent available, but which also take into consideration one or more unobservable inputs that are significant to the valuation taken as a whole.

As of September 30, 2016 and June 30, 2016, all of our investments were classified as Level 3 investments, determined based on valuations by our board of directors.

Determination of fair value involves subjective judgments and estimates. Accordingly, the notes to our financial statements express the uncertainty with respect to the possible effect of such valuations, and any change in such valuations, on the consolidated financial statements.

 

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Revenue recognition

Our revenue recognition policies are as follows:

Net realized gains (losses) on investments: Gains or losses on the sale of investments are calculated using the specific identification method.

Interest Income: Interest income, adjusted for amortization of premium and accretion of discount, is recorded on an accrual basis. Origination, closing, commitment, and amendment fees, purchase and original issue discounts associated with loans to portfolio companies are accreted into interest income over the respective terms of the applicable loans. Accretion of discounts or premiums is calculated by the effective interest or straight-line method, as applicable, as of the purchase date and adjusted only for material amendments or prepayments. Upon the prepayment of a loan or debt security, any prepayment penalties and unamortized fees and discounts are recorded as interest income and are non-recurring in nature.

Structuring fees and similar fees are recognized as income as earned, usually when received. Structuring fees, excess deal deposits, net profits interests and overriding royalty interests are included in other fee income.

We may hold debt investments in its portfolio that contain a payment-in-kind (“PIK”) interest provision. The PIK interest, which represents contractually deferred interest added to the investment balance that is generally due at maturity, is recorded on the accrual basis to the extent such amounts are expected to be collected.

Non-accrual: Loans are placed on non-accrual status when principal or interest payments are past due 90 days or more or when there is reasonable doubt that principal or interest will be collected. Accrued interest is generally reversed when a loan is placed on non-accrual status. Interest payments received on non-accrual loans may be recognized as income or applied to principal depending upon management’s judgment about ultimate collectability of principal. Non-accrual loans are restored to accrual status when past due principal and interest is paid and, in management’s judgment, are likely to remain current. PIK interest is not accrued if we do not expect the issuer to be able to pay all principal and interest when due. As of September 30, 2016, we had two investments on non-accrual status, which represented approximately 4.5% of our portfolio at fair value. As of June 30, 2016, we had two investments on non-accrual status, which represented approximately 6.2% of our portfolio at fair value.

Financing Facility

On May 23, 2013, as amended on June 6, 2013, December 4, 2013, September 26, 2014, July 17, 2015, July 20, 2015 and August 14, 2015, we, through CM SPV, our wholly owned subsidiary, entered into a financing facility (the “Financing Facility”) with UBS AG, London Branch (together with its affiliates, “UBS”). The Financing Facility includes a $102.0 million term securitized financing facility (the “Term Financing”), which expires on December 5, 2018 and a $50.0 million revolving financing (the “Revolving Financing”), which expires on December 5, 2016. As of September 30, 2016, the Term Financing bears interest at LIBOR plus 2.75% and the Revolving Financing at a fixed rate of 2.00% on the drawn portion and at 0.50% per annum on the undrawn portion. As of September 30, 2016 and June 30, 2016, we had $102.0 million and $102.0 million outstanding under the Term Financing, respectively, and $14.5 million and $30.5 million outstanding under the Revolving Facility, respectively.

Investments

Our level of investment activity can and does vary substantially from period to period depending on many factors, including the amount we have available to invest as well as the amount of debt and equity capital available to middle-market companies, the level of merger and acquisition activity, the general economic environment and the competitive environment for the types of investments we make.

As a BDC, we are required to comply with certain regulatory requirements. For instance, as a BDC, we may not acquire any assets other than “qualifying assets” specified in the 1940 Act unless, at the time the acquisition is made, at least 70% of our total assets are qualifying assets (with certain limited exceptions). Qualifying assets include investments in “eligible portfolio companies.” Under the relevant SEC rules, the term “eligible portfolio company” includes all private companies, companies whose securities are not listed on a national securities exchange, and certain public companies that have listed their securities on a national securities exchange and have a market capitalization of less than $250 million. In each case, the company must be organized in the United States. As of September 30, 2016, approximately 9.9% of our total assets were non-qualifying assets.

To qualify as a RIC, we must, among other things, meet certain source-of-income and asset diversification requirements. As a RIC, we generally will not have to pay corporate-level taxes on any income we distribute to our stockholders.

 

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Revenues

We generate revenues primarily in the form of interest on the debt we hold. We also generate revenue from royalty income, dividends on our equity interests and capital gains on the sale of warrants and other debt or equity interests that we acquire. Our investments in fixed income instruments generally have an expected maturity of three to five years, although we have no lower or upper constraint on maturity. Interest on our debt investments is generally payable quarterly or semi-annually. Payments of principal of our debt investments may be amortized over the stated term of the investment, deferred for several years or due entirely at maturity. In some cases, our debt investments and preferred stock investments may defer payments of cash interest or dividends or PIK interest. Any outstanding principal amount of our debt investments and any accrued but unpaid interest will generally become due at the maturity date. In addition, we may generate revenue in the form of prepayment fees, commitment, origination, structuring or due diligence fees, fees for providing significant managerial assistance, consulting fees and other investment related income.

Expenses

Our primary operating expenses include the payment of a base management fee and, depending on our operating results, incentive fees, expenses reimbursable by us under the Advisory Agreement, and administration fees and our allocable portion of overhead under the Administration Agreement. The base management fee and incentive compensation remunerates the Adviser for work in identifying, evaluating, negotiating, closing and monitoring our investments. We bear all other out-of-pocket costs and expenses of our operations and transactions, including, without limitation, those relating to:

 

    our organization, the formation transactions and our initial public offering;

 

    calculating our net asset value (including the cost and expenses of any independent valuation firm(s));

 

    fees and expenses payable to third parties, including agents, consultants or other advisors, in monitoring financial and legal affairs for us and in monitoring our investments and performing due diligence on our prospective portfolio companies or otherwise relating to, or associated with, evaluating and making investments;

 

    interest payable on debt, if any, incurred to finance our investments and expenses related to unsuccessful portfolio acquisition efforts;

 

    offerings of our common stock and other securities;

 

    administration fees and expenses, if any, payable under the Administration Agreement (including our allocable portion of the Adviser’s overhead in performing its obligations under the Administration Agreement, including rent, equipment and the allocable portion of the cost of our chief compliance officer, chief financial officer and their respective staffs’ compensation and compensation-related expenses);

 

    transfer agent, dividend agent and custodial fees and expenses;

 

    costs associated with our reporting and compliance obligations under the 1940 Act, the Securities Exchange Act of 1934 (the “Exchange Act”), and other applicable federal and state securities laws, and stock exchange listing fees;

 

    fees and expenses associated with independent audits and outside legal costs;

 

    federal, state and local taxes;

 

    independent directors’ fees and expenses;

 

    costs of any reports, proxy statements or other notices to or communications and meetings with stockholders;

 

    costs associated with investor relations;

 

    costs and fees associated with any fidelity bond, directors and officers/errors and omissions liability insurance, and any other insurance premiums;

 

    direct costs and expenses of administration, including printing, mailing, long distance telephone, copying, secretarial and other staff; and

 

    all other expenses incurred by us or the Adviser in connection with administering our business.

Portfolio and investment activity

Portfolio composition

We invest primarily in lower middle-market companies in the form of unitranche loans, standalone first and second lien and mezzanine loans. We may also invest in unsecured debt, bonds and in the equity of portfolio companies through warrants and other instruments.

At September 30, 2016, our investment portfolio of $264.2 million (at fair value) consisted of investments in 22 portfolio companies, of which 63.1% were first lien investments, 36.8% were second lien investments, and 0.1% were in equity and warrant positions. At September 30, 2016, our average and largest portfolio company investment at fair value was $12.0 million and $28.9 million, respectively.

 

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At June 30, 2016, our investment portfolio of $272.1 million (at fair value) consisted of investments in 22 portfolio companies, of which 57.7% were first lien investments, 42.2% were second lien investments, and 0.1% were in equity and warrant positions. At June 30, 2016, our average and largest portfolio company investment at fair value was $12.4 million and $29.0 million, respectively.

As of September 30, 2016 and June 30, 2016, respectively, our weighted average total yield of debt and income producing securities at amortized cost (which includes interest income and amortization of fees and discounts) was 10.02% and 9.80%, respectively.

At September 30, 2016 and June 30, 2016, respectively, the industry composition of our portfolio at fair value was as follows:

 

    

Percentage of

Total Portfolio

at September 30,

2016

   

Percentage of

Total Portfolio

at June 30,

2016

 

Entertainment and Leisure

     15.48     19.46

Automobiles and Components

     11.43        7.88   

Telecommunications

     11.41        11.04   

Business Services

     7.11        4.88   

Oil and Gas

     6.89        6.21   

Healthcare-Products/Services

     6.79        6.92   

Media

     6.06        5.88   

Construction & Building

     6.00        5.91   

Trucking and Leasing

     5.30        5.02   

Oilfield Services

     5.29        5.47   

Industrial

     4.29        7.96   

Cable

     4.25        4.08   

Retail

     3.67        —     

Information Technology

     3.19        3.59   

Utilities

     2.84        2.76   

Services

     —          2.94   
  

 

 

   

 

 

 

Total

     100     100
  

 

 

   

 

 

 

During the three months ended September 30, 2016, we added five new investments totaling approximately $24.3 million. Three of these investments were in new portfolio companies. Of the new investments, 100% consisted of first lien investments.

At September 30, 2016, 90.2% of our debt investments bore interest based on floating rates based on indices such as LIBOR (in certain cases, subject to interest rate floors), and 9.8% bore interest at fixed rates. At June 30, 2016, 87.9% of our debt investments bore interest based on floating rates based on indices such as LIBOR (in certain cases, subject to interest rate floors), and 11.6% bore interest at fixed rates.

Our investment portfolio may contain loans that are in the form of lines of credit or revolving credit facilities, which require us to provide funding when requested by portfolio companies in accordance with the terms of the underlying loan agreements. As of September 30, 2016, we had one investment with an unfunded commitment and as of June 30, 2016, we had no investments with unfunded commitments.

Asset Quality

In addition to various risk management and monitoring tools, we use the Adviser’s investment rating system to characterize and monitor the credit profile and expected level of returns on each investment in our portfolio. This investment rating system uses a five-level numeric rating scale. The following is a description of the conditions associated with each investment rating:

 

Investment Rating 1    Investments that are performing above expectations, and whose risks remain favorable compared to the expected risk at the time of the original investment.
Investment Rating 2    Investments that are performing within expectations and whose risks remain neutral compared to the expected risk at the time of the original investment. All new loans will initially be rated 2.
Investment Rating 3    Investments that are performing below expectations and that require closer monitoring, but where no loss of return or principal is expected. Portfolio companies with a rating of 3 may be out of compliance with their financial covenants.
Investment Rating 4    Investments that are performing substantially below expectations and whose risks have increased substantially since the original investment. These investments are often in workout. Investments with a rating of 4 will be those for which some loss of return but no loss of principal is expected.
Investment Rating 5    Investments that are performing substantially below expectations and whose risks have increased substantially since the original investment. These investments are almost always in workout. Investments with a rating of 5 will be those for which some loss of return and principal is expected.

 

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If the Adviser determines that an investment is underperforming, or circumstances suggest that the risk associated with a particular investment has significantly increased, the Adviser will increase its monitoring intensity and prepare regular updates for the investment committee, summarizing current operating results and material impending events and suggesting recommended actions. While the investment rating system identifies the relative risk for each investment, the rating alone does not dictate the scope and/or frequency of any monitoring that will be performed. The frequency of the Adviser’s monitoring of an investment will be determined by a number of factors, including, but not limited to, the trends in the financial performance of the portfolio company, the investment structure and the type of collateral securing the investment.

The following table shows the investment rankings of the debt investments in our portfolio:

 

     As of September 30, 2016      As of June 30, 2016  
     Fair Value      % of
Portfolio
    Number of
Investments
     Fair Value      % of
Portfolio
    Number of
Investments
 

1

   $ 13,843,600         5.2 %     1       $ 13,843,600         5.1 %     1  

2

     199,566,627         75.5       15         205,389,359         75.5       15  

3

     34,230,689         13.0       3         36,019,187         13.2       3  

4

     4,642,342         1.8       1         —           —          —     

5

     11,911,522         4.5       2         16,862,018         6.2       3  
  

 

 

    

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

Total

   $ 264,194,780         100.0 %     22       $ 272,114,164         100.0 %     22  
  

 

 

    

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

Results of Operations

Comparison of the three months ended September 30, 2016 and September 30, 2015

Investment income

Investment income, attributable primarily to interest and fees on our debt investments, for the three months ended September 30, 2016 decreased to $7.6 million from $9.9 million for the three months ended September 30, 2015, primarily due to the repayment of portfolio companies with higher yields the quarter ended September 30, 2016.

Expenses

Total expenses for the three months ended September 30, 2016 decreased to $3.6 million compared to $5.0 million for the three months ended September 30, 2015, due primarily to a decrease in income based incentive fees.

Net investment income

Net investment income decreased to $4.0 million for the three months ended September 30, 2016 from $4.9 million for the three months ended September 30, 2015, primarily due to a decrease in investment income primarily due to the repayment of portfolio companies with higher yields and two investments on non-accrual.

Net realized gain or loss

During the three months ended September 30, 2016, a we had a realized loss of $8.0, primarily due to the restructuring of AAR Intermediate Holdings, LLC.

The net realized loss on investments totaled $0.2 million for the three months ended September 30, 2015.

Net change in unrealized (depreciation) appreciation on investments

We recorded a net change in unrealized appreciation of $8.4 million for the three months ended September 30, 2016, primarily due to the restructuring of AAR Intermediate Holdings, LLC and an increase in valuations of certain investments.

 

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During the three months ended September 30, 2015, we recorded a net change in unrealized depreciation of $4.9 million primarily due to a decline in fair value of our investments in AP NMT Acquisitions, AAR Intermediate Holdings, LLC., Caelus Energy, AM General and Trident.

Liquidity and capital resources

Cash flows

For the three months ended September 30, 2016, our unrestricted cash balance decreased by $5.9 million. During that period, we generated $14.9 million in cash from operating activities, primarily due to proceeds from repayment and sale of investments in portfolio companies of $33.2 million, offset by investments of $24.3 million in portfolio companies. During the same period, we used $20.8 million towards financing activities, consisting primarily of distributions to our stockholders and repayments to our Revolving Facility.

Capital Resources

As of September 30, 2016, we had $12.6 million of cash as well as $16.1 million in restricted cash and $35.5 million of capacity under the Revolving Financing. We intend to generate additional cash primarily from future offerings of securities, future borrowings under the Revolving Financing as well as cash flows from operations, including income earned from investments in our portfolio companies and, to a lesser extent, from the temporary investment of cash in U.S. government securities and other high-quality debt investments that mature in one year or less. Our primary liquidity needs include interest and principal repayments on our Financing Facility, our unfunded loan commitments (if any), investments in portfolio companies, dividend distributions to our stockholders and operating expenses.

As discussed below in further detail, we have elected to be treated as a RIC under the Code. To maintain our RIC status, we generally must distribute substantially all of our net taxable income to stockholders in the form of dividends. Our net taxable income does not necessarily equal our net income as calculated in accordance with GAAP.

Regulated Investment Company Status and Distributions

We have elected to be treated as a RIC under Subchapter M of the Code. If we qualify as a RIC, we will not be taxed on our investment company taxable income or realized net capital gains, to the extent that such taxable income or gains are distributed, or deemed to be distributed, to stockholders on a timely basis.

Taxable income generally differs from net income for financial reporting purposes due to temporary and permanent differences in the recognition of income and expenses, and generally excludes net unrealized appreciation or depreciation until realized. Dividends declared and paid by us in a year may differ from taxable income for that year as such dividends may include the distribution of current year taxable income or the distribution of prior year taxable income carried forward into and distributed in the current year. Distributions also may include returns of capital.

To qualify for RIC tax treatment, we must, among other things, distribute to our stockholders, with respect to each taxable year, at least 90% of our investment company net taxable income (i.e., our net ordinary income and our realized net short-term capital gains in excess of realized net long-term capital losses, if any). We will also be subject to a federal excise tax, based on distributive requirements of our taxable income on a calendar year basis.

We intend to distribute to our stockholders between 90% and 100% of our annual taxable income (which includes our taxable interest and fee income). However, the covenants contained in the Financing Facility may prohibit us from making distributions to our stockholders, and, as a result, could hinder our ability to satisfy the distribution requirement. In addition, we may retain for investment some or all of our net taxable capital gains (i.e., realized net long-term capital gains in excess of realized net short-term capital losses) and treat such amounts as deemed distributions to our stockholders. If we do this, our stockholders will be treated as if they received actual distributions of the capital gains we retained and then reinvested the net after-tax proceeds in our common stock. Our stockholders also may be eligible to claim tax credits (or, in certain circumstances, tax refunds) equal to their allocable share of the tax we paid on the capital gains deemed distributed to them. To the extent our taxable earnings for a fiscal taxable year fall below the total amount of our dividends for that fiscal year, a portion of those dividend distributions may be deemed a return of capital to our stockholders.

We may not be able to achieve operating results that will allow us to make distributions at a specific level or to increase the amount of these distributions from time to time. In addition, we may be limited in our ability to make distributions due to the asset coverage test for borrowings applicable to us as a BDC under the 1940 Act and due to provisions in Financing Facility. We cannot assure stockholders that they will receive any distributions or distributions at a particular level.

 

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In accordance with certain applicable Treasury regulations and private letter rulings issued by the Internal Revenue Service, a RIC may treat a distribution of its own stock as fulfilling its RIC distribution requirements if each shareholder elects to receive his or her entire distribution in either cash or stock of the RIC, subject to a limitation that the aggregate amount of cash to be distributed to all stockholders must be at least 20% of the aggregate declared distribution. If too many stockholders elect to receive cash, each shareholder electing to receive cash must receive a pro rata amount of cash (with the balance of the distribution paid in stock). In no event will any shareholder, electing to receive cash, receive less than 20% of his or her entire distribution in cash. If these and certain other requirements are met, for U.S. federal income tax purposes, the amount of the dividend paid in stock will be equal to the amount of cash that could have been received instead of stock. We have no current intention of paying dividends in shares of our stock in accordance with these Treasury regulations or private letter rulings.

Investment Advisory Agreement

Pursuant to the Advisory Agreement, we have agreed to pay to the Adviser a base management fee of 1.75% of gross assets, as adjusted, including assets purchased with borrowed funds or other forms of leverage and excluding cash and cash equivalents and “fair value of derivatives associated with our financing”, and an incentive fee consisting of two parts.

The first part of the incentive fee, which is calculated and payable quarterly in arrears, equals 20.0% of the “pre-incentive fee net investment income” (as defined in the Advisory Agreement) for the immediately preceding quarter, subject to a hurdle rate of 2.0% per quarter (8.0% annualized), and is subject to a “catch-up” feature. The incentive fee is subject to a total return requirement, which provides that no incentive fee in respect of the Company’s pre-incentive fee net investment income will be payable except to the extent 20.0% of the cumulative net increase in net assets resulting from operations over the then current and 11 preceding quarters exceeds the cumulative incentive fees accrued and/or paid for the 11 preceding quarters. The net pre-incentive fee investment income used to calculate this part of the incentive fee is also included in the amount of our gross assets used to calculate the 1.75% base management fee.

The second part of the incentive fee is calculated and payable in arrears as of the end of each calendar year and equals 20.0% of the aggregate cumulative realized capital gains from inception through the end of each calendar year, computed net of aggregate cumulative realized capital losses and aggregate cumulative unrealized capital depreciation through the end of such year, less the aggregate amount of any previously paid capital gain incentive fees.

The Adviser has agreed to permanently waive: (i) all or portions of base management fees through December 31, 2014, to the extent required to support an annualized dividend yield of 9.0% per annum based on the price per share of our common stock in the initial public offering of $15.00, and (ii) all or portions of the incentive fee for 2014, 2015 and 2016, to the extent required to support an annualized dividend yield of 9.0%, 9.25% and 9.375% per annum, respectively, based on the price per share of the our common stock in the initial public offering of $15.00. Fees permanently waived by the Adviser are not subject to future repayment or recoupment by the Adviser.

For the three months ended September 30, 2016 and September 30, 2015, $1,211,535 and $1,452,157 in base management fees were earned by the Adviser, respectively, of which $1,211,535 and $1,452,157 were payable at September 30, 2016 and September 30, 2015, respectively.

For the three months ended September 30, 2016, we incurred $0 of incentive fees related to pre-incentive fee net investment income. As of September 30, 2016, $7,388 of previous incentive fees are currently payable to the Adviser which consist of $268,152 of pre-incentive fees incurred by us that were generated from deferred interest (i.e. PIK and certain discount accretion) and are not payable until such amounts are received in cash. For the three months ended September 30, 2015, the Company incurred $1,229,032 of incentive fees related to pre-incentive fee net investment income, of which $0 was waived. As of September 30, 2015, $1,101,891 of such incentive fees were currently payable to the Adviser of which $401,807 of pre-incentive fees incurred by us were generated from deferred interest (i.e. PIK and certain discount accretion) and are not payable until such amounts are received in cash.

The realized gains incentive fee consists of fees related to both realized gains and unrealized gains. As of September 30, 2016, there was no realized gains incentive fee payable to the Adviser under the Advisory Agreement. As of September 30, 2015, there was no realized gains incentive fee payable to the Adviser under the Advisory Agreement.

With respect to the incentive fee expense accrual relating to the unrealized gains incentive fee, GAAP requires that the realized gains incentive fee accrual consider the cumulative aggregate unrealized appreciation in the calculation, as a realized gains incentive fee would be payable if such unrealized appreciation were realized, even though such unrealized appreciation is not permitted to be considered in calculating the fee actually payable under the Advisory Agreement.

 

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The Advisory Agreement provides that, absent willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of the reckless disregard of its duties and obligations under the Advisory Agreement, the Adviser and its officers, managers, partners, agents, employees, controlling persons and members, and any other person or entity affiliated with it, are entitled to indemnification from us for any damages, liabilities, costs and expenses (including reasonable attorneys’ fees and amounts reasonably paid in settlement) arising from the rendering of the Adviser’s services under the Advisory Agreement or otherwise as the Adviser.

Prior to our election to be regulated as a BDC on February 5, 2014, no base or incentive management fees were due and payable.

Off-Balance Sheet Arrangements

We may be a party to financial instruments with off-balance sheet risk in the normal course of business to meet the financial needs of our portfolio companies. As of September 30, 2016 and June 30, 2016, we did not have any off-balance sheet arrangements.

Recent Developments

On November 9, 2016, we entered into a 2.5 year, $50 million senior secured revolving credit facility (the “New Revolving Financing”) with Citibank, N.A. (“Citibank”), which is secured by collateral consisting primarily of commercial loans and corporate bonds. The New Revolving Financing will expire on May 1, 2019.

Borrowings under the New Revolving Financing will generally bear interest at a rate per annum equal to LIBOR plus 4.85%. Default interest rate will be equal to the interest rate then in effect plus 2.00%. The New Revolving Financing requires the payment of an unused fee of 2.85% annually for any undrawn amounts below 75% of the New Revolving Financing, and 0.75% annually for any undrawn amounts above 75% of the New Revolving Financing. Borrowings under the New Revolving Financing are based on a borrowing base. The New Revolving Financing generally requires payment of interest on a quarterly basis. All outstanding principal is due upon maturity. The New Revolving Financing also requires mandatory prepayment of interest and principal upon certain events.

 

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Item 3. Quantitative and Qualitative Disclosure about Market Risk

We are subject to financial market risks, including changes in interest rates. At September 30, 2016, 90.2% of our debt investments bore interest based on floating rates, such as LIBOR, EURIBOR, the Federal Funds Rate or the Prime Rate. The interest rates on such investments generally reset by reference to the current market index after one to six months. Floating rate investments subject to a floor generally reset by reference to the current market index after one to six months only if the index exceeds the floor.

Generally, we believe higher yielding assets such as those in our investment portfolio do not necessarily follow a linear interest rate relationship and are less sensitive in price to interest rate changes than many other debt investments. Our investments in fixed rate assets are generally exposed to changes in value due to interest rate fluctuations, and our floating rate assets are generally exposed to cash flow variability from fluctuation in rates. Consequently, our net interest income (interest income less interest expense) is exposed to risks related to interest rate fluctuations. Based on our current portfolio with certain interest rate floors and our financing at September 30, 2016, a 1.00% increase in interest rates would increase our net interest income by approximately 2.7% and a 2.00% increase in interest rates would increase our net interest income by approximately 8.6%. Variable-rate instruments subject to a floor generally reset periodically to the applicable floor and, in the case of investments in our portfolio, quarterly to a floor based on LIBOR, only if the floor exceeds the index. Under these loans, we do not benefit from increases in interest rates until such rates exceed the floor and thereafter benefit from market rates above any such floor.

Although management believes that this analysis is indicative of our existing sensitivity to interest rate changes, it does not adjust for changes in the credit markets, the size, credit quality or composition of the assets in our portfolio and other business developments, including borrowing, that could affect the net increase in net assets resulting from operations, or net income. It also does not adjust for the effect of the time lag between a change in the relevant interest rate index and the rate adjustment under the applicable loan. Accordingly, we can offer no assurances that actual results would not differ materially from the statement above.

Item 4. Controls and Procedures

(a) Evaluation of Disclosure Controls and Procedures

As of September 30, 2016, we, including our Chief Executive Officer and Chief Financial Officer, evaluated the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rule 13a-15(e) under the Securities Exchange Act of 1934). Based on that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective in timely alerting management, including the Chief Executive Officer and Chief Financial Officer, of material information about us required to be included in periodic SEC filings.

(b) Changes in Internal Control Over Financial Reporting

Management did not identify any change in the Company’s internal control over financial reporting that occurred during the quarter ended September 30, 2016 that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

PART II—OTHER INFORMATION

Item 1. Legal Proceedings

We are not currently subject to any material legal proceedings, nor, to our knowledge, is any material legal proceeding threatened against us. From time to time, we may be a party to certain legal proceedings in the ordinary course of business, including proceedings relating to the enforcement of our rights under contracts with our portfolio companies. While the outcome of these legal proceedings cannot be predicted with certainty, we do not expect that these proceedings will have a material effect upon our financial condition or results of operations.

Item 1A. Risk Factors

During the three months ended September 30, 2016, there have been no material changes to the risk factors disclosed under Part I, Item 1A, “Risk Factors” in our Annual Report on Form 10-K for the fiscal year ended June 30, 2016.

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds

Not applicable.

Item 3. Defaults Upon Senior Securities

Not applicable.

 

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Item 4. Mine Safety Disclosures

Not applicable.

Item 5. Other Information

Not applicable.

Item 6. Exhibits

The following exhibits are filed as part of this report or hereby incorporated by reference to exhibits previously filed with the SEC:

 

  3.1    Amended and Restated Articles of Incorporation (1)
  3.2    Bylaws (1)
10.1*    Second Amended and Restated Stockholder Agreement, dated as of November 7, 2016, between the Registrant and Stifel Venture Corp.
10.2*    Loan Agreement, dated as of November 9, 2016, between CM SPV LLC and Citibank, N.A.
10.3*    Collateral Management Agreement, dated as of November 9, 2016, between CM Finance SPV LLC and CM Investment Partners, L.P.
10.4*    Account Control Agreement, dated as of November 9, 2016, by and among CM Finance SPV LLC, Citibank, N.A. and Virtus Group, LP
10.5*    Security Agreement, dated as of November 9, 2016, between CM Finance SPV LLC and Citibank, N.A.
11.1    Computation of Per Share Earnings (included in “Note 9. Earnings Per Share” to the unaudited financial statements contained in this report)
31.1    Chief Executive Officer Certification Pursuant to Exchange Act Rule 13a-14 (a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002*
31.2    Chief Financial Officer Certification Pursuant to Exchange Act Rule 13a-14 (a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002*
32.1    Chief Executive Officer Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002*
32.2    Chief Financial Officer Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002*

 

* Filed herewith
(1) Incorporated by reference to Registrant’s Registration Statement on Form N-2 (File No. 333-192370), filed on November 15, 2013.

 

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SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

Dated: November 9, 2016

 

CM FINANCE INC
By:  

/s/ Michael C. Mauer

  Michael C. Mauer
  Chief Executive Officer
By:  

/s/ Rocco DelGuercio

  Rocco DelGuercio
  Chief Financial Officer

 

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Exhibit 10.1

SECOND AMENDED AND RESTATED STOCKHOLDER AGREEMENT

THIS SECOND AMENDED AND RESTATED STOCKHOLDER AGREEMENT is entered into as of November 7, 2016 (this “ Agreement ”), by and among CM Finance Inc, a Maryland corporation (the “ Company ”), CM Investment Partners LLC, a Delaware limited liability company (the “ Adviser ”), Stifel Venture Corp., a Missouri corporation (“ Stifel ”) and for purposes of Section 3 only, Stifel, Nicolaus & Company, Incorporated.

WHEREAS, the Company, the Adviser, Stifel and Stifel, Nicolaus & Company, Incorporated (for purposes of Section 3 only) previously entered into that certain Amended and Restated Stockholder Agreement, dated as of August 30, 2016 (the “ Amended Stockholder Agreement ”); and

WHEREAS, the parties hereto desire to amend and restate the Amended Stockholder Agreement in its entirety setting forth certain rights and obligations with respect to the nomination of a director to the Board of Directors of the Company (the “ Board ”) and other matters relating to the Board.

NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

Section 1. Definitions . As used in this Agreement, the following terms shall have the meanings ascribed to them below:

Affiliate ” means, with respect to any Person that is an entity, any other Person directly or indirectly controlling, controlled by or under common control with such Person. As used in this definition, the term “control” (including with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

Articles of Incorporation ” means the Articles of Amendment and Restatement of the Company, as may be amended from time to time.

Bylaws ” means the Bylaws of the Company, as may be amended from time to time.

Person ” means any individual, corporation, firm, partnership, joint venture, limited liability company, estate, trust, business association, organization, Governmental Entity or other entity.

 

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Section 2. Board Nomination .

(a) For so long as Stifel holds ownership interests in the Adviser (the “ Adviser Interests ”) equal to at least 15% (except as provided in Section 2(h)) of the total ownership interests in the Adviser (such time period, the “ Stifel Nomination Period ”), Stifel shall have the right to designate in writing (the “ Stifel Nominee Notice ”) a Person (the “ Stifel Nominee ”) to serve as a member of the Board. Subject to Section 2(c) and Section 2(h), upon receipt of the Stifel Nominee Notice, the Board shall nominate the Stifel Nominee to serve as a member of the Board as part of the Company’s slate of directors at each annual or special meeting of the stockholders (the “ Stockholders ”) in which the term of any Stifel Nominee will expire and of the Company (or, if permitted, by any action by written consent of the Stockholders) at or by which directors of the Company are to be elected during the Stifel Nomination Period, and recommend that the Stockholders vote to elect the Stifel Nominee at each such meeting or by such written consent.                

(b) Subject to Section 2(f), vacancies arising through the death, resignation or removal of the Stifel Nominee who was elected or appointed to the Board pursuant to this Section 2, may be filled by the Board only with a Stifel Nominee, and the director so chosen shall hold office until the next election or until his or her successor is duly elected and qualified, or until his or her earlier death, resignation or removal. Notwithstanding the provisions of this Section 2, in the event that Stifel does not designate a Stifel Nominee to fill any vacancy arising through the death, resignation or removal of the Stifel Nominee who was elected or appointed to the Board pursuant to this Section 2, the Board may reduce the size of the Board pursuant to the provisions of the Articles of Incorporation and Bylaws to eliminate any such vacancy.

(c) Notwithstanding the provisions of this Section 2, Stifel shall not be entitled to designate a Person as a nominee to the Board if the Nominating and Corporate Governance Committee of the Company reasonably determines in writing (which determination shall set forth the reasonable grounds for such determination) that such Person would not be qualified under any applicable law, rule or regulation to serve as a director of the Company; provided, that in such event, Stifel shall be entitled to designate another Person as the Stifel Nominee and the provisions of Section 2 shall apply to such alternate Person. Only the Nominating and Corporate Governance Committee of the Company shall have the right to object to any Stifel Nominee.

(d) During the Stifel Nomination Period, the Company shall notify Stifel in writing of the date on which proxy materials are expected to be mailed by the Company in connection with an election of directors at an annual or special meeting of the Stockholders that includes the election of the Stifel Nominee at least 45 days prior to such expected mailing date. Following receipt of such Company notice, Stifel shall deliver a Stifel Nominee Notice setting forth (i) the name and address of the Stifel Nominee and (ii) the information required for director nominees under Items 401, 403 and 404 of Regulation S-K under the federal securities laws. The Company shall provide Stifel with a reasonable opportunity to review and provide comments on any portion of the proxy materials relating to the Stifel Nominee and the rights and obligations provided under this Agreement and to discuss any such comments with the Company. The Company shall include Stifel’s reasonable comments in the proxy materials relating to such matters. The

 

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Company shall notify Stifel of any opposition to a Stifel Nominee sufficiently in advance of the date on which such proxy materials are to be mailed by the Company in connection with such election of directors so as to enable Stifel to propose a replacement Stifel Nominee, if necessary, in accordance with the terms of this Agreement.

(e) In the event the Stockholders fail to elect or consent to a Stifel Nominee in accordance with the preceding sentence, (i) Stifel shall designate another Person as the Stifel Nominee and the provisions of Section 2 shall apply to such alternate Person and (ii) the Company shall promptly appoint the Stifel Nominee to any such vacancy on the Board created by the Stockholders failure to elect or consent to a Stifel Nominee. For the avoidance of doubt, in no event shall the Company be required to nominate or appoint a Stifel Nominee to the Board of Directors of the Company if the Stockholders fail to elect or consent to such Stifel Nominee.

(f) In the event that Stifel ceases to have the right to designate a Person to serve as a director pursuant to this Section 2, Stifel shall use its best efforts to cause the applicable Stifel Nominee to resign immediately.

(g) The Company agrees that at all times during the Stifel Nomination Period (i) subject to applicable legal requirements, the Bylaws and the Articles of Incorporation shall accommodate, be subject to, and shall not in any way conflict with, Stifel’s rights and obligations set forth herein and (ii) the Company shall not enter into any other agreements or understandings that in any way conflict with Stifel’s rights and obligations set forth herein; provided, however, if Stifel has not designated a Person to serve on the Board pursuant to this Section 2, the Board may reduce the size of the Board to eliminate any vacancies on the Board as provided in Section 2(b). The Company further agrees that it shall not enter into any agreements or understandings with any Stockholders (other than agreements or understandings equally applicable to all Stockholders) without prior notice to Stifel; provided, that the Company shall provide to Stifel (x) substantially final copies of all documentation relating to such agreements or understandings no later than five (5) business days prior to the signing of such documentation and (y) fully executed copies of such documentation promptly following their execution.

(h) During the Stifel Nomination Period, in the event that (i) the Board has reduced the size of the Board to eliminate a vacancy arising through the death, resignation or removal of the Stifel Nominee and/or the failure of Stifel to designate a Stifel Nominee in accordance with Section 2(b), and (ii) Stifel subsequently provides a Stifel Nominee Notice in accordance with Section 2(a), not later than the 90th day from the Company’s receipt of a Stifel Nominee Notice in accordance with Section 2(a), the Board shall increase the size of the Board to create a vacancy for a Stifel Nominee to be nominated to fill and, subject to Section 2(c), the Company shall appoint the Stifel Nominee to the Board to fill such vacancy.

(i) The Stifel Nomination Period shall not terminate in the event Stifel’s ownership of Adviser Interests falls below 15% as a result of a transfer of Adviser Interests made on a pro rata basis with all members of the Adviser. In the event of such a pro rata transfer, the 15% threshold set forth the definition of “Stifel Nomination Period” shall be deemed reduced by a percentage equal to the percentage by which Stifel’s ownership of Adviser Interests was reduced in such pro rata transfer (by way of example only, if all existing members transfer 10% of their Adviser Interests to a third party, the 15% threshold shall become 13.5%).

 

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Section 3. Stifel Originated Opportunities .

(a) Stifel agrees to use its commercially reasonable efforts to offer to the Adviser for investment by any fund or other investment vehicle managed, advised or sub-advised by the Adviser, including the Company (collectively, “CMIP Funds”), every Stifel Opportunity subject to the terms and conditions of this Section 3, and also subject to any other restrictions pursuant to applicable law (including any requirements that Stifel, Nicolaus & Company, Incorporated act in the best interests of its clients in connection with any Stifel Opportunity) or pursuant to restrictions in engagements with clients or Affiliates related to such Stifel Opportunity. For purposes of this Agreement, a Stifel Opportunity shall mean all leveraged finance and high yield corporate debt investment opportunities originated by Stifel, Nicolaus & Company, Incorporated that are reasonably appropriate for the Company.

(b) Subject to the limitations in Section 3(a), Stifel, Nicolaus & Company, Incorporated shall provide notice (the “ Opportunity Notice ”) to the Adviser of each Stifel Opportunity setting forth: (i) any material terms and conditions of the Stifel Opportunity and (ii) the last date and time on which Stifel will accept bids for such Stifel Opportunity, which date and time may be adjusted from time to time by Stifel, Nicolaus & Company, Incorporated upon prior notice to the Adviser (the “ End Date ”). For the avoidance of doubt, Stifel, Nicolaus & Company, Incorporated agrees that unless otherwise mutually agreed to by the Adviser and Stifel, Nicolaus & Company, Incorporated, Stifel, Nicolaus & Company, Incorporated will not consummate the Stifel Opportunity prior to the End Date. If CMIP Fund(s) submit a bid for the Stifel Opportunity (a “ CMIP Fund Bid ”) prior to the End Date, Stifel, Nicolaus & Company, Incorporated shall use commercially reasonable efforts to accept the CMIP Fund Bid; provided, however, that Stifel, Nicolaus & Company, Incorporated shall not be required to accept the CMIP Fund Bid if: (x) the CMIP Fund Bid was not received by Stifel, Nicolaus & Company, Incorporated on or prior to the End Date or (y) Stifel, Nicolaus & Company, Incorporated received bids from third parties with terms more favorable to the Stifel, Nicolaus & Company, Incorporated client, prior to the End Date, sufficient to fill the Stifel Opportunity.

(c) In the event that Stifel, Nicolaus & Company, Incorporated intends to accept the CMIP Fund Bid pursuant to Section 3(b) above, Stifel, Nicolaus & Company, Incorporated shall use commercially reasonable efforts to allow CMIP Fund(s) to consummate the CMIP Fund Bid in an amount equal to the lesser of (x) 30% of the value of the Stifel Opportunity set forth in the Opportunity Notice and (y) 5% of the Pro Forma AUM of Adviser related to CMIP Fund(s) on behalf of which the Adviser submitted the CMIP Fund Bid on the End Date. For purposes of this Section 3(c), “Pro Forma AUM” means the assets under management related to the subject CMIP Fund(s) as of the most recently completed fiscal quarter; provided, that, as of the date hereof, 5% of the Pro Forma AUM shall be deemed to equal $15,000,000, and 5% of the Pro Forma AUM shall at no time exceed $35,000,000.

 

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(d) The provisions of this Section 3 shall apply for so long as Stifel holds Adviser Interests equal to at least 15% of the total ownership interests in the Adviser; provided, however, if Stifel unilaterally sells its Adviser Interests, the provisions of this Section 3 shall continue to apply, unless Stifel sells 75% or more of its Adviser Interests, in which case the provisions of this Section 3 shall cease to apply on the third anniversary of such sale. Any attempt by Stifel to transfer all or a portion of its Adviser Interests that is not consummated because that sale was not approved by the Board of the Adviser will be deemed to have been sold by Stifel for purposes of this Section 3.

Section 4.  AUM and Performance .

Upon completion of the Merger and the contribution by Stifel pursuant to the Subscription Agreement, neither the Company nor the Adviser shall object to Stifel’s (a) inclusion of the performance results of the Company and all assets managed by the Adviser in any and all reports, publications, marketing materials, prospectuses, press releases, advertisements, webpages, conference materials or other oral or written communications, in each case in a manner that is consistent with applicable law or regulation or (b) description of the Company’s relationship with Stifel in any and all reports, publications, marketing materials, prospectuses, press releases, advertisements, webpages, conference materials or other oral or written communications, in each case, that the Adviser would have been entitled to so include or describe under applicable law or regulation. To this end, the Company agrees that Stifel shall have the right to access and retain copies of any records reasonably necessary to substantiate the foregoing. The aforementioned communications and written materials that include information pertaining to the Company and all assets managed by the Adviser shall be subject to the approval of the Adviser, but only to the extent necessary to ensure the satisfaction of regulatory requirements.

Section 5. Miscellaneous .

(a) Effective Date . This Agreement shall become effective upon the date first written above.

(b) Applicable Law . This Agreement shall be construed in accordance with and governed by the laws of the State of Maryland without regard to principles of conflict of laws.

(c) Certain Adjustments . The provisions of this Agreement shall apply to the full extent set forth herein with respect to any and all shares of capital stock of the Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in exchange for, or in substitution for the shares of Common Stock, by combination, recapitalization, reclassification, merger, consolidation or otherwise and the term “Common Stock” shall include all such other securities.

(d) Enforcement . Each of the parties hereto acknowledges and agrees that irreparable injury to the other party hereto would occur in the event any of the provisions of this Agreement were not performed in accordance with its specific terms or were otherwise breached, and that such injury would not be adequately compensable in damages. It is accordingly agreed that

 

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Stifel, on the one hand, and the Company, on the other hand, shall each be entitled to specific enforcement of, and injunctive relief to prevent any violation of, the terms hereof and the other party hereto will not take any action, directly or indirectly, in opposition to the party seeking relief on the grounds that any other remedy is available at law or in equity, and each party further agrees to waive any requirement for the security or posting of any bond in connection with such remedy. Such remedies, shall be cumulative and not exclusive, and shall be in addition to any other remedy which any party hereto may have.

(e) Successors and Assigns . This Agreement may not be assigned, whether outright or by operation of law, by any party hereto without the prior written consent of the non-assigning party. Subject to the foregoing, this Agreement shall be binding upon the parties hereto, their heirs, executors, personal representatives, successors, and assigns.

(f) Entire Agreement; Termination . This Agreement contains the entire understanding among the parties hereto and supersedes all prior written or oral agreements among them respecting the within subject matter, unless otherwise provided herein. There are no representations, agreements, arrangements or understandings, oral or written, among the parties hereto relating to the subject matter of this Agreement that are not fully expressed herein. This Agreement may be terminated at any time by written consent of all of the parties hereto.

(g) Dispute Resolution . Any dispute, controversy or claim arising out of, or in connection with, this Agreement shall be settled by binding arbitration in accordance with the rules of the American Arbitration Association then in effect. The arbitration shall be conducted on an expedited basis at a location to be determined by the parties by an independent arbitrator selected by the American Arbitration Association. The arbitration shall be subject to, and the arbitrator shall have the powers and rights afforded by, the rules of the American Arbitration Association. The decision of such arbitrator, including any award of attorneys’ fees and costs, may be entered in any court with jurisdiction.

(h) Notices . All notices and demands under this Agreement and other communications required to be delivered pursuant to this Agreement, shall be in writing or by facsimile, with a copy via email (which shall not constitute notice hereunder), and shall be deemed to have been duly given if delivered personally or by overnight courier or if mailed by certified mail, return receipt requested, postage prepaid, or sent by facsimile, to the following addresses (or to such other address as the party entitled to notice shall hereafter designate in accordance with the terms hereof):

If to the Company:

CM Finance Inc

399 Park Avenue, 39 th Floor

New York, New York 10002

Attn: Michael C. Mauer

 

6


If to the Adviser:

CM Investment Partners LLC

399 Park Avenue, 39 th Floor

New York, New York 10002

Attn: Michael C. Mauer

If to Stifel:

Stifel Venture Corp.

237 Park Avenue, 8th Floor

New York, NY 10017

Attn: Mark Fisher

All such notices shall be effective: (a) if delivered personally, when received (with written confirmation of receipt), (b) if sent by overnight courier, when receipted for, (c) if mailed, five (5) days after being mailed as described above and (d) upon transmission by facsimile if a customary confirmation of delivery is received during normal business hours and, if not, the next business day after confirmation of delivery is received.

(i) Waiver . No consent or waiver, express or implied, by any party to, or of any breach or default by another party in the performance of, this Agreement shall be construed as a consent to or waiver of any subsequent breach or default in the performance by such other party of the same or any other obligations hereunder.

(j) Counterparts . This Agreement may be executed in several counterparts, which shall be treated as originals for all purposes, and all counterparts so executed shall constitute one agreement, binding on all the parties hereto, notwithstanding that not all the parties are signatory to the original or the same counterpart. Any such counterpart shall be admissible into evidence as an original hereof against the Person who executed it.

(k) Headings . The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning of terms contained herein.

(l) Invalidity of Provision . The invalidity or unenforceability of any provision of this Agreement in any jurisdiction shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of this Agreement, including that provision, in any other jurisdiction.

(m) Amendments and Waivers . The provisions of this Agreement may be modified or amended at any time and from time to time, and particular provisions of this Agreement may be waived or modified, with and only with an agreement or consent in writing signed by each of the parties hereto.

(n) Further Assistance . The parties hereto shall execute and deliver all documents, provide all information and take or refrain from all such action as may be necessary or appropriate to achieve the purposes of this Agreement.

 

7


(o) No Third-Party Beneficiaries . This Agreement is not intended to, and does not, confer upon any Person other than the parties hereto any rights or remedies.

[ Remainder of Page Intentionally Left Blank ]

 

8


IN WITNESS WHEREOF this Agreement has been signed by each of the parties hereto, and shall be effective as of the date first above written.

 

CM FINANCE INC
By:  

/s/ Michael C. Mauer

Name:   Michael C. Mauer
Title:   Chief Executive Officer
CM INVESTMENT PARTNERS LLC
By MMCMIP LLC, its managing member
By:  

/s/ Michael C. Mauer

Name:   Michael C. Mauer
Title:   Sole Member

Agreed and accepted as of the date first set forth above:

STIFEL VENTURE CORP.

 

By:  

/s/ Thomas K. Goedeke

Name:   Thomas K. Goedeke
Title:   Vice President

Agreed and accepted with respect to Section 3 only as of the date first set forth above:

STIFEL NICOLAUS & COMPANY, INCORPORATED

 

By:  

/s/ Victor J. Nesi

Name:   Victor J. Nesi
Title:   Senior Vice President

 

 

[ Signature Page – CM Finance Second Amended and Restated Stockholder Agreement (November 2016) ]

Exhibit 10.2

LOAN AGREEMENT dated as of November 9, 2016 (this Agreement ) between CM Finance SPV LLC, a limited liability company formed under the laws of the State of Delaware (the Borrower ), the financial institutions and other lenders from time to time party hereto as “Lenders” (the Lenders ) and Citibank, N.A., a national banking association, as administrative agent for the Lenders (in such capacity, together with its successors in such capacity, the Administrative Agent ).

W HEREAS :

A. The Borrower intends to purchase one or more Term Loans (as defined herein) and Bonds (as defined herein) outstanding under the respective Debt Obligation Agreements referred to herein (the Term Loans and Bonds so acquired, collectively, the Debt Obligations );

B. The Borrower wishes to use the proceeds of Loans hereunder to finance a portion of the cost of purchasing the Debt Obligations; and

C. The Borrower has requested that the Initial Lender (as hereinafter defined) make the Loans to the Borrower, and the Initial Lender is willing to make the Loans to the Borrower, all on the terms and conditions set forth herein.

I NTERPRETATION

Defined Terms

1.1 As used herein, the following terms shall have the following meanings (all terms defined in this Section 1.1 or in other provisions of this Agreement in the singular to have the same meanings when used in the plural and vice versa ):

Account Control Agreement means the Account Control Agreement dated as of the date hereof between the Borrower, the Security Agent, Citibank, N.A., as intermediary (in such capacity, together with its successors in such capacity, the Custodian ), and Virtus, L.P., as collateral administrator (in such capacity, together with its successors in such capacity, the Collateral Administrator ).

Additional Amount has the meaning given to such term in Section 3.8(a).

Administrative Agent has the meaning specified in the first paragraph of this Agreement.

Advance Rate means (a) in the case of a Debt Obligation that is neither a Bond nor a Specified Debt Obligation, 50% and (b) in the case of any Debt Obligation that is a Bond or Specified Debt Obligation, the percentage specified by the Initial Lender to the Borrower on or prior to the date on which the Initial Lender gives its consent as provided herein to the purchase thereof by the Borrower, in each case, as such percentage may be adjusted from to time to time as provided in Section 3.10(e). Notwithstanding the foregoing, the Advance Rate shall be zero (a) with respect to any Excess Concentration Debt Obligation and (b) with respect to any Debt Obligation as to which a Debt Obligation Event has occurred and is continuing.


Administrative Questionnaire means, with respect to any Lender, an Administrative Questionnaire completed by such Lender in a form supplied by the Administrative Agent.

Affiliate means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

Aggregate Purchase Amount means, on any date of determination, the aggregate of the Purchase Amounts of all Debt Obligations on such date.

Agreement has the meaning specified in the first paragraph of this Agreement.

Approved Buyer means (a) any Person listed in Schedule II so long as its long-term unsecured and unsubordinated debt obligations on the “trade date” for the related submission of a Firm Bid contemplated hereby are rated at least “A2” by Moody’s and at least “A” by S&P and (b) if a Person listed in Schedule II is not the principal banking or securities Affiliate within a financial holding company group, the principal banking or securities Affiliate of such listed Person within such financial holding company group so long as such obligations of such Affiliate have the rating indicated in clause (a) above.

Assignment Agreement means any assignment or similar agreement entered into by the Borrower with respect to the purchase or sale of any Term Loan or Bond.

Assignment and Acceptance means an assignment and acceptance entered into by a Lender and an assignee, and accepted by the Administrative Agent, in a form customarily used by the Administrative Agent for such purpose.

Average Advance Rate means, on any date of determination, an amount determined by (a) first, with respect to each Debt Obligation (other than any Excess Concentration Debt Obligation), multiplying the Par Amount of such Debt Obligation on such date by the related Advance Rate in effect on such date, (b) second, calculating the sum of the products determined pursuant to the foregoing clause (a) and (c) third, dividing the sum determined pursuant to the foregoing clause (b) by the aggregate Par Amount of all Debt Obligations (other than any Excess Concentration Debt Obligation) on such date.

Bond means any obligation for the payment or repayment of borrowed money that is in the form of, or represented by, a bond, note (other than notes delivered pursuant to Loans), certificated debt security or other debt security.

Borrower has the meaning specified in the first paragraph of this Agreement.

Borrower Formation Documents means (a) the certificate of formation of the Borrower and (b) the limited liability company agreement of the Borrower.

Borrowing Base means, on any date of determination, an amount equal to the lesser of (a) the Maximum Commitment Amount and (b) the sum of (i) the Principal Balance of all Eligible Investments

 

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standing to the credit of the Principal Collection Account on such date plus (ii) an amount determined by (x) first, with respect to each Debt Obligation (other than any Excess Concentration Debt Obligation), multiplying the Par Amount of such Debt Obligation on such date by the related Advance Rate in effect on such date and (y) second, calculating the sum of the products determined pursuant to the foregoing clause (x).

Borrowing Base Deficiency means, on any date of determination, an amount equal to the excess (if any) of (a) the aggregate principal amount of the Loans outstanding on such date over (b) the Borrowing Base on such date. No Borrowing Base Deficiency shall occur or exist on any date of determination if the amount produced by the foregoing calculation is not greater than zero.

Borrowing Date has the meaning given to such term in Section 2.1.

Borrowing Notice Date has the meaning given to such term in Section 2.2(b).

Business Day means a day on which commercial banks and foreign exchange markets settle payments in New York and London.

Cash means such coin or currency of the United States of America as at the time shall be legal tender for payment of all public and private debts.

Change in Law means (a) the adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any governmental authority after the date of this Agreement or (c) compliance by any Lender with any request, guideline or directive (whether or not having the force of law) of any governmental authority made or issued after the date of this Agreement; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

Change in Tax Law means, with respect to any Lender or Participant, the enactment, promulgation, execution or ratification of, or any change in or amendment to, any law (or in the application or official interpretation of any law) that occurs on or after the date on which the relevant entity became a Lender or Participant, as the case may be, under this Agreement.

CM means CM Investment Partners, L.L.C., a limited liability company formed under the laws of the State of Delaware.

Collateral has the meaning given to it in the Security Agreement.

 

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Collateral Management Agreement means the Collateral Management Agreement dated as of the date hereof between the Borrower and the Collateral Manager, together with any successor or replacement agreement contemplated thereby.

Collateral Manager means CM, together with any successor collateral manager under any successor or replacement Collateral Management Agreement.

Collateral Quality Test means, with respect to any Debt Obligation, a test that is satisfied when such obligation satisfies each of the following clauses on the date of purchase thereof:

 

(i) The obligation is a Term Loan or Bond.

 

(ii) The obligation is denominated in USD.

 

(iii) The obligation constitutes a legal, valid, binding and enforceable obligation of the applicable Reference Entity, enforceable against such person in accordance with its terms.

 

(iv) The obligation constitutes indebtedness for U.S. Federal income tax purposes.

 

(v) If such obligation is a Bond, transfers thereof may be effected through The Depositary Trust Company.

 

(vi) If such obligation is a Bond, transfers thereof are eligible under the related Reference Obligation Debt Agreement to be effected pursuant to Rule 144A under the Securities Act and pursuant to Regulation S under the Securities Act.

 

(vii) Except for any Specified Debt Obligation, if such obligation is a Loan, transfers thereof on the Obligation Trade Date may be effected pursuant to the Standard Terms and Conditions for Par/Near Par Trade Confirmations and not the Standard Terms and Conditions for Distressed Trade Confirmations, in each case as published by the LSTA and as in effect on the Obligation Trade Date.

 

(viii) Except for any Specified Debt Obligation, the obligation is not Subordinate.

 

(ix) Except for any Specified Debt Obligation, the obligation is secured.

 

(x) Except for any Specified Debt Obligation, the obligation is part of a fungible class of debt obligations (as to issuance date and all economic terms) of at least USD150,000,000.

 

(xi) Except for any Specified Debt Obligation, the obligation is the subject of the subject of at least one bid quotation from a nationally recognized independent dealer in the related obligation as reported on a Pricing Service.

 

(xii) Except for any Specified Debt Obligation, if the obligation is a Second Lien Obligation, the relevant tranche of the obligation has a facility rating assigned by Moody’s of at least Caa1 or a facility rating assigned by S&P of at least CCC+.

 

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Collection Accounts means the Interest Collection Account and the Principal Collection Account.

Contractual Currency has the meaning given to such term in Section 3.13.

Control means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. Controlling and Controlled have meanings correlative thereto.

Coverage Deficiency means, on any date of determination, an amount equal to the excess (if any) of (a) the Coverage Requirement on such date over (b) the Net Equity Amount on such date. No Coverage Deficiency shall occur or exist on any date of determination if the amount produced by the foregoing calculation is not greater than zero.

Coverage Requirement means, on any date of determination, an amount equal to (a) the Aggregate Purchase Amount on such date multiplied by (b) a percentage equal to (i) 100% minus (ii) the sum of (x) the Average Advance Rate plus (y) the Termination Threshold.

Coverage Requirement Cure shall occur, on any date of determination, if (a) the Net Equity Amount on such date is at least equal to (b) an amount equal to (i) the Aggregate Purchase Amount on such date multiplied by (ii) a percentage equal to (x) 100% minus (y) the Average Advance Rate.

Current Price means, on any date of determination with respect to any Debt Obligation, the Administrative Agent’s determination of the net cash proceeds that would be received from the sale on such date of determination of any Debt Obligation. If the Borrower disputes the Administrative Agent’s determination of the Current Price of such Debt Obligation, then the Borrower may, no later than 24 hours after the Borrower is given notice of such determination, (a) designate a Dealer and (b) provide to the Administrative Agent within such 24-hour period with respect to such Dealer either (i) a Firm Bid with respect to not less than the Par Amount of such Debt Obligation or (ii) a Bloomberg screen page indicating that such Dealer has made, during such 24-hour period, both a bid and an offer quotation with respect to not less than the Par Amount of such Debt Obligation. If the Borrower disputes the Administrative Agent’s determination of the Current Price of such Debt Obligation, but is unable after using commercially reasonable efforts to provide the information specified in clause (b)(i) or (b)(ii) above, then the Borrower may engage the Valuations & Opinions Group of Lincoln International or any other independent valuation agent acceptable to the Administrative Agent to determine, not less frequently than once during each calendar week, the fair value of such Debt Obligation in accordance with the requirements of GAAP and otherwise consistent with such valuation agent’s customary practices. With respect to any Debt Obligation, the Firm Bid or bid quotation provided to the Administrative Agent as aforesaid (or, if applicable, the fair value so determined, if determined as of a date not more than seven days prior to the relevant date of determination of the Current Price),

 

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adjusted to reflect the Administrative Agent’s estimate of all expenses of sale that would be incurred in connection with the sale of such Debt Obligation, will be the Current Price of such Debt Obligation for the relevant date of determination. The “Current Price” shall be expressed as a percentage of par and will be determined exclusive of accrued interest and premium.

Current Value means, on any date of determination with respect to any Debt Obligation, (a) the Current Price of such Debt Obligation on such date multiplied by (b) the Par Amount of such Debt Obligation on such date.

Dealer means (a) any entity (other than the Administrative Agent or any of its Affiliates) designated by the Administrative Agent or its designated Affiliate in its sole discretion as a “Dealer” for the purposes of this Agreement and (b) to the extent designated by the Borrower pursuant to the definition of “Current Price”, either (i) any Approved Buyer or (ii) any other entity approved in advance by the Administrative Agent, such approval not to be unreasonably withheld or delayed (it being agreed that the Administrative Agent may reasonably withhold its approval based on the credit standing of such entity); provided that the Administrative Agent or any Affiliate thereof may be a Dealer if more than one Dealer is otherwise designated.

Debt Obligation has the meaning given to such term in the recitals to this Agreement and includes any obligation, security or other property (other than cash) received in exchange for any “Debt Obligation”.

Debt Obligation Agreement means, with respect to any Debt Obligation, the term loan agreement, other similar credit agreement, indenture, note purchase agreement, securities purchase agreement or other similar agreement governing such Debt Obligation.

Debt Obligation Bankruptcy Event means, with respect to any Debt Obligation, the occurrence of the following with respect to any Obligor on such Debt Obligation: Bankruptcy. Capitalized terms used in this definition but not defined in this Agreement shall have the meanings specified in the 2003 ISDA Credit Derivatives Definitions.

Debt Obligation Event means, with respect to any Debt Obligation, the occurrence of one or more of the following: (a) such Debt Obligation (or any portion thereof), including by reason of any exchange, shall fail to be denominated and payable solely in USD; and (b) such Debt Obligation (or any portion thereof), solely by reason of any exchange or modification thereof, shall fail to constitute indebtedness for U.S. Federal income tax purposes.

Debt Obligation Failure to Pay Event means, with respect to any Debt Obligation, the occurrence of the following with respect to such Debt Obligation (or any portion thereof): Failure to Pay. For purposes of the determination of whether a Debt Obligation Failure to Pay Event has occurred, the Reference Obligation shall be such Debt Obligation, the Obligation Category will be Borrowed Money, the Payment Requirement will be USD1,000,000 and no Obligation Characteristics will be specified. Capitalized terms used in this definition but not defined in this Agreement shall have the meanings specified in the 2003 ISDA Credit Derivatives Definitions.

 

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Default Rate means, with respect to any Interest Period, the Interest Rate for such Interest Period plus 2.00%.

Default Threshold means USD5,000,000.

Eligible Investments means (a) Cash, (b) deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof which has a combined capital and surplus and undivided profits of not less than USD1,000,000,000, and (c) money market funds that have, at all times, credit ratings of “Aaa” and “MR1+” by Moody’s Investor’s Service, Inc. and “AAAm” or “AAAm-G” by Standard & Poor’s, respectively. Eligible Investments may include investments described in clause (b) or (c) above made with or issued by the Custodian or for which the Custodian or an Affiliate thereof provides services and receives compensation.

Equity Restricted Payment means any dividend or other distribution (whether in cash, securities or other property) with respect to any ownership interest in the Borrower, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any ownership interest in the Borrower or any option, warrant or other right to acquire any ownership interest in the Borrower.

Events of Default has the meaning given to such term in Section 6.1.

Excess Concentration Debt Obligation means, on any date of determination, any Debt Obligation whose ownership by the Borrower (other than as an “Excess Concentration Debt Obligation”) would not on such date satisfy one or more of the following clauses (but only to the extent that such inclusion would not satisfy any such clause):

 

(a) the sum of the Purchase Amounts for all Debt Obligations that are Bonds does not exceed 10% of the Portfolio Target Amount;

 

(b) the sum of the Purchase Amounts for all Debt Obligations that are (i) Second Lien Obligations, (ii) unsecured or (iii) Subordinate does not exceed 35% of the Portfolio Target Amount; and

 

(c) the sum of the Purchase Amounts for all Debt Obligations that are Specified Debt Obligations does not exceed 15% of the Portfolio Target Amount.

Debt Obligations that fail to satisfy any such clause shall be treated as an “Excess Concentration Debt Obligation” in the reverse order of their respective dates of purchase by the Borrower.

Excluded Taxes means taxes imposed on or with respect to a Lender or required to be withheld or deducted from a payment to a Lender which taxes are imposed on or measured by net income (however denominated), franchise taxes, and branch profits taxes, in each case, (i) as a result of such Lender being organized under the laws of, or having its principal office or its applicable lending office located in, the jurisdiction imposing such tax (or any political subdivision thereof) or (ii) as a result of a present or former connection between such Lender and the jurisdiction of the government or taxation authority

 

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imposing such tax (other than connections arising from such Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced this Agreement or any Support Document, or sold or assigned an interest in the Loans, this Agreement or any Support Document).

FATCA means Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof.

Federal Funds Effective Rate means, on any date of determination, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

Firm Bid shall be, with respect to any Debt Obligation, a good and irrevocable bid for value, to purchase the Par Amount of such Debt Obligation, expressed as a percentage of the outstanding principal amount of such Debt Obligation and exclusive of accrued interest and premium, for scheduled settlement substantially in accordance with the then-current market practice in the principal market for such Debt Obligation, as determined by the Administrative Agent, submitted as of 11:00 a.m. New York time or as soon as practicable thereafter. The Administrative Agent shall be entitled to disregard any Firm Bid submitted by a Dealer (a) if, in the Administrative Agent’s commercially reasonable judgment, (i) such Dealer may be ineligible to accept assignment or transfer of the Par Amount of such Debt Obligation substantially in accordance with the then-current market practice in the principal market for such Debt Obligation, as determined by the Administrative Agent, or (ii) such Dealer would not, through the exercise of its commercially reasonable efforts, be able to obtain any consent required under the related Debt Obligation Agreement to the assignment or transfer to such Dealer of the Par Amount of such Debt Obligation or (b) if the Administrative Agent determines that such Firm Bid is not bona fide, including, without limitation, due to (i) the insolvency of the bidder, (ii) the inability, failure or refusal of the bidder to settle the purchase of the Par Amount of such Debt Obligation or otherwise settle transactions in the relevant market or perform its obligations generally or (iii) the Administrative Agent not having pre-approved trading lines with the Dealer that would permit settlement of the Par Amount of such Debt Obligation.

Foreign Lender means any Lender, including Persons that shall have become party hereto pursuant to an Assignment and Acceptance and Participants, that is organized under the laws of a jurisdiction other than the United States of America or any state thereof, other than any such Lender that has provided a validly executed IRS Form W-8ECI (or any successor form) certifying that its income with respect to the Loans is effectively connected with a trade or business in the United States of America.

 

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GAAP means generally accepted accounting principles in the United States of America, consistently applied.

Indebtedness of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all guarantees by such Person of Indebtedness of others, (h) all capital lease obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty and (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances.

Indemnitee has the meaning given to such term in Section 8.1.

Initial Lender means Citibank, N.A., a national banking association.

Interest Collection Account has the meaning given to such term in the Account Control Agreement.

Interest Period means each period from and including a Quarterly Date to but excluding the next succeeding Quarterly Date, provided that (a) the first Interest Period shall commence on the date hereof (subject to the following clause (c)), (b) the final Interest Period shall end on the Maturity Date and (c) with respect to any Loan that is borrowed on a Borrowing Date other than the date hereof, a separate Interest Period will be deemed to exist with respect to such Loan, which separate Interest Period shall be the period from and including such Borrowing Date to but excluding the next succeeding Quarterly Date.

Interest Proceeds means the sum (determined without duplication) of:

(i) all payments of interest, premium, commitment fees, facility fees, amendment fees, waiver fees, other fees, delayed compensation and other income received by the Borrower in cash in respect of any Debt Obligation or any Eligible Investment held by the Borrower, including accrued interest, premium, commitment fees, facility fees, amendment fees, waiver fees, other fees, delayed compensation and other income received as a result of any sale or other disposition (including any sale or other disposition made pursuant to the Security Agreement) of any Debt Obligation (or any portion thereof) or any Eligible Investment, but excluding (x) any payment of principal, (y) any sale proceeds in respect of principal and (z) interest, fees or other income accrued to the date of purchase thereof by the Borrower that were included in the purchase price paid by the Borrower; and

(ii) all principal and interest payments received by the Borrower in cash in respect of Eligible Investments purchased with Interest Proceeds.

 

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Interest Rate means, with respect to any Interest Period, LIBOR for such Interest Period plus 4.85%.

Investment Advisers Act means the U.S. Investment Advisers Act of 1940.

Investment Company Act means the U.S. Investment Company Act of 1940.

Investor means CM Finance Inc., which is on the date hereof the sole owner of the Borrower.

Investor NAV means the net asset value of the Investor determined and calculated in accordance with all SEC rules applicable to filings of quarterly and annual financial statements in periodic reports required to be filed by the Investor with the SEC.

Lenders has the meaning specified in the first paragraph of this Agreement.

LIBOR means, with respect to any Interest Period, the rate for deposits in USD for the period of three months that appears on the Reuters Screen LIBOR01 Page (or any successor page) as of 11:00 a.m., London time, on the day that is two London Banking Days preceding the first day of such Interest Period; provided that, with respect to any Interest Period commencing prior to the first Quarterly Date, LIBOR for such Interest Period shall be determined through the use of straight-line interpolation by reference to two rates appearing on such page as of such time on such date, one of which shall be determined as if the length of period for the relevant deposits were the period of time for which rates are available next shorter than the length of such Interest Period and the other of which shall be determined as if the length of the period for the relevant deposits were the period of time for which rates are available next longer than the length of such Interest Period. In addition, in no event shall LIBOR for any Interest Period or any other specified interest period be less than zero.

Lien means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

Loan has the meaning given to such term in Section 2.1.

Loan Parties means the Lenders, the Administrative Agent, the Security Agent, the Security Agent Custodian, the Collateral Administrator and the Custodian.

London Banking Day means any day on which commercial banks are open for general business (including dealings in foreign exchange and foreign currency deposits) in London.

 

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LSTA means The Loan Syndications and Trading Association, Inc. and any successor thereto.

Material Adverse Effect means a material adverse effect on (a) the business, assets, operations or condition, financial or otherwise, of the Borrower, (b) the ability of the Borrower to perform any of its obligations under this Agreement or any other Transaction Document to which it is a party or (c) the rights of or benefits available to any of the Lenders or the Security Agent under this Agreement or any of the other Transaction Documents.

Maturity Date means the earlier of (a) the Scheduled Maturity Date and (b) the date on which the Loans are paid in full.

Maximum Commitment Amount means USD50,000,000.

Net Equity Amount means, on any date of determination, an amount equal to the excess (if any) of (a) the sum of (i) the Current Value of all Debt Obligations on such date plus (ii) the Principal Balance of all Eligible Investments standing to the credit of the Collection Accounts on such date over (b) the sum of (i) the aggregate principal amount of the Loans outstanding on such date plus (ii) the aggregate of all other amounts owing on (and, if applicable, accrued on or prior to) such date by the Borrower under this Agreement, any Support Document or the Collateral Management Agreement (whether or not then due or payable).

Obligor means, with respect to any Debt Obligation, any obligor (whether as primary obligor, guarantor or other secondary obligor or otherwise) on such Debt Obligation.

Par Amount means, on any date of determination with respect to any Debt Obligation, the principal amount of such Debt Obligation held by the Borrower and outstanding on such date.

Participant has the meaning given to such term in Section 8.4(f).

Participant Register has the meaning given to such term in Section 8.4(f).

Payment Account means, with respect to payments to be made hereunder or under any Support Document to any Lender, the account of such Lender for receiving such payments most recently specified to the Borrower and the Administrative Agent in a notice from such Lender.

Payment Dates means each of the days occurring five Business Days following a Quarterly Date.

Person means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership or other entity or the government of the United States of America or any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

 

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Portfolio Target Amount means, on any date of determination, (a) during the Reinvestment Period, the Maximum Commitment Amount divided by the Average Advance Rate and (b) occurring after the Reinvestment Period, the aggregate principal amount of the Loans then outstanding divided by by the Average Advance Rate.

Potential Event of Default means any event or circumstance that, with the giving of notice and/or the lapse of time, would become an Event of Default.

Pricing Service means Markit Partners, Loan Pricing Corp. or a nationally recognized pricing service acceptable to the Initial Lender as specified in a notice to the Borrower.

Principal Balance means, on any date of determination, with respect to any Eligible Investment in any account, the aggregate (i) current balance of Cash, demand deposits, time deposits, certificates of deposit and federal funds; (ii) principal amount of interest-bearing corporate and government securities, money market accounts and repurchase obligations; and (iii) purchase price (but not greater than the face amount) of non-interest-bearing government and corporate securities and commercial paper.

Principal Collection Account has the meaning given to such term in the Account Control Agreement.

Principal Proceeds means all net proceeds received by the Borrower in cash in respect of any Debt Obligation or any Eligible Investment held by the Borrower, including as a result of any sale or other disposition (including any sale or other disposition made pursuant to the Security Agreement) of any Debt Obligation (or any portion thereof) or any Eligible Investment, but excluding all Interest Proceeds.

Proceedings has the meaning given to such term in Section 8.5(b).

Process Agent has the meaning given to such term in Section 8.5(c).

Property means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.

Purchase Amount means, on any date of determination with respect to any Debt Obligation, (a) the Purchase Price on such date with respect to such Debt Obligation multiplied by (b) the Par Amount on such date.

Purchase Price means, with respect to any Debt Obligation, the aggregate purchase price paid by the Borrower to purchase such Debt Obligation (which (a) shall be expressed as a percentage of par and (b) shall be determined exclusive of accrued interest, premium and fees). The Purchase Price for any Debt Obligation shall not exceed 100%.

Quarterly Date means the 20th day of each March, June, September and December, commencing with the first such date after the date hereof.

Register has the meaning given to such term in Section 8.4(e).

 

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Reinvestment Period means the period from and including the date hereof to but excluding the Reinvestment Period Termination Date; provided that, following the occurrence of an Event of Default, the Reinvestment Period may be terminated pursuant to Section 6.

Reinvestment Period Termination Date means May 1, 2018; provided that, if such day is not a Business Day, then the Reinvestment Period Termination Date will be the immediately preceding Business Day.

Related Party means (a) the Investor or any Affiliate thereof, (b) any investment advisor to the Investor or any Affiliate thereof or (c) any account or portfolio as to which any investment adviser to the Investor or any Affiliate thereof (or any Affiliate of such investment adviser) serves as investment advisor.

Required Lenders means Lenders holding more than 50% of the outstanding principal amount of the Loans.

Representation Date means the date hereof and each other date specified herein (or in any amendment or other modification hereto) upon which the representations made herein are to be repeated or deemed repeated.

Scheduled Maturity Date means May 1, 2019; provided that, if such day is not a Business Day, then the Scheduled Maturity Date will be the immediately preceding Business Day.

Second Lien Obligation means an obligation that is secured by collateral, but as to which the beneficiary or beneficiaries of such collateral security agree for the benefit of the holder or holders of other indebtedness secured by the same collateral ( First Lien Debt ) as to one or more of the following: (1) to defer their right to enforce such collateral security either permanently or for a specified period of time while First Lien Debt is outstanding, (2) to permit a holder or holders of First Lien Debt to sell such collateral free and clear of the security in favor of such beneficiary or beneficiaries, (3) not to object to sales of assets by the obligor on such obligation following the commencement of a bankruptcy or other insolvency proceeding with respect to such obligor or to an application by the holder or holders of First Lien Debt to obtain adequate protection in any such proceeding and (4) not to contest the creation, validity, perfection or priority of First Lien Debt.

Securities Act means the U.S. Securities Act of 1933.

Security Agent means Citibank, N.A., as agent for the secured parties under the Security Agreement, together with any successor in such capacity.

Security Agent Custodian has the meaning given to such term in the Security Agreement.

Security Agreement means the Security Agreement dated as of the date of this Agreement between the Borrower and the Security Agent.

 

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Specified Debt Obligation means any Debt Obligation whose purchase by the Borrower would not satisfy one or more of clauses (vii) through (xii) of the Collateral Quality Test (other than as a “Specified Debt Obligation”).

Stamp Tax means any stamp, registration, documentation or similar tax.

Stamp Tax Jurisdiction has the meaning given to such term in Section 3.8(d).

Subordinate means, with respect to an obligation (the Subordinated Obligation ) and another obligation of the obligor thereon to which such obligation is being compared (the Senior Obligation ), a contractual, trust or similar arrangement (without regard to the existence of preferred creditors arising by operation of law or to collateral, credit support, lien or other credit enhancement arrangements or provisions regarding the application of proceeds of any of the foregoing) providing that (i) upon the liquidation, dissolution, reorganization or winding up of the obligor, claims of the holders of the Senior Obligation will be satisfied prior to the claims of the holders of the Subordinated Obligation or (ii) the holders of the Subordinated Obligation will not be entitled to receive or retain payments in respect of their claims against the obligor at any time that the obligor is in payment arrears or is otherwise in default under the Senior Obligation.

Subsidiary means, with respect to any Person (the parent ) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, Controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

Support Document means each of the Security Agreement, the Account Control Agreement and any other document designated by the Borrower and the Administrative Agent as a “Support Document”.

Tax has the meaning given to such term in Section 3.8(a).

Term Loan means any loan or other similar debt obligation that requires the holder thereof to make, on or after the date on which the Borrower acquires such loan or other similar debt obligation, one or more advances to the borrower under the instrument or agreement pursuant to which such debt obligation was issued or created (whether or not such advances, if repaid, may be reborrowed).

Termination Threshold means 25%.

Transaction Documents means this Agreement, the Support Documents, the Collateral Management Agreement and the Assignment Agreements.

U.S. Dollars and USD mean lawful money of the United States of America.

 

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Interpretation

1.2 Unless the context otherwise clearly requires: (a) the definitions of terms herein shall apply equally to the singular and plural forms of the terms defined; (b) whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms; (c) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”; (d) the word “will” shall be construed to have the same meaning and effect as the word “shall”; (e) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein); (f) any reference herein to any Person shall be construed to include such Person’s successors and assigns; (g) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof; and (h) all references herein to Sections, Exhibits and Schedules shall be construed to refer to Sections of, and Exhibits and Schedules to, this Agreement.

T HE L OANS

2.1 Subject to the terms and conditions set forth herein, the Initial Lender agrees to make a term loan (each a Loan ) to the Borrower from time to time on any Business Day (each, a Borrowing Date ) during the Reinvestment Period in order to finance the purchase of a Debt Obligation with the proceeds of such term loan. Amounts repaid in respect of the Loans may not be reborrowed.

2.2 The advance of each term loan pursuant to Section 2.1 shall be subject to:

 

(a) the satisfaction on or prior to the first Borrowing Date of each of the conditions precedent specified in Schedule I hereto (and the making of the initial term loan on the initial Borrowing Date shall be deemed to constitute the satisfaction of each of the conditions precedent specified in Schedule I hereto);

 

(b) the receipt by the Administrative Agent of a notice of borrowing (the date of such notice being the Borrowing Notice Date ) from the Borrower not less than three (and not more than five) Business Days prior to the relevant Borrowing Date (which notice shall be irrevocable and effective only upon receipt by the Administrative Agent):

 

  (i) specifying the proposed Borrowing Date (which shall occur during the Reinvestment Period);

 

  (ii) specifying the amount of the proposed advance (which shall be an amount not less than USD1,000,000 and in an integral multiple of USD10,000);

 

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  (iii) specifying the Par Amount of the Term Loan or Bond whose purchase is to be settled with the proceeds of such advance and the Purchase Price with respect to the Term Loan or Bond being purchased; and

 

  (iv) setting forth computations in reasonable detain necessary to establish the satisfaction of the condition set forth in paragraph (e) below;

 

(c) each of the representations and warranties of the Borrower set forth in this Agreement and the Support Documents are true and correct in all material respects on and as of the related Borrowing Notice Date (or, if expressly stated to be made as of any specific date, on and as of such specific date) (and with each such representation and warranty being made on and as of the related Borrowing Notice Date for all purposes of this Agreement);

 

(d) no Event of Default or Potential Event of Default has occurred and is continuing or would result from such borrowing;

 

(e) no Borrowing Base Deficiency or Coverage Deficiency has occurred and is continuing or would result from such borrowing;

 

(f) no Debt Obligation Bankruptcy Event or Debt Obligation Failure to Pay Event has occurred and is continuing on the related Borrowing Notice Date with respect to the Term Loan or Bond being purchased;

 

(g) the Collateral Quality Test with respect to the Term Loan or Bond being purchased is satisfied after giving effect to such borrowing;

 

(h) the aggregate principal amount of the Loans after giving effect to such borrowing does not exceed the Maximum Commitment Amount.

Subject to the satisfaction of such conditions, the Initial Lender shall make such advance available on the related Borrowing Date by wire transfer of immediately available funds by 12:00 noon, New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Initial Lender.

2.3 The proceeds from each Loan shall be used by the Borrower exclusively for the purchase of one or more Term Loans and Bonds identified in the related notice of borrowing given pursuant to Section 2.2.

2.4 The Loans and other obligations of the Borrower hereunder shall be secured as provided in the Security Agreement and shall be entitled to the benefit of the other Support Documents. The Lenders hereby irrevocably appoint the Security Agent as their agent under the Security Agreement and each other Support Document and authorize the Security Agent to take such actions on their behalf and to exercise such powers as are delegated to the Security Agent by the terms of the Security Agreement and each other Support Document, together with such actions and powers as are reasonably incidental thereto.

 

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P AYMENTS OF P RINCIPAL , I NTEREST AND F EES

Payments of Principal; Reduction of Maximum Commitment Amount

 

3.1(a) For value received, the Borrower hereby unconditionally promises to pay to the Administrative Agent for account of the Lenders the entire aggregate unpaid principal amount of the Loans on the Scheduled Maturity Date.

 

(b) With respect to each period set forth in the table below, the Borrower shall pay to the Administrative Agent for account of the Lenders the portion set forth below of the aggregate principal amount of the Loans outstanding (the Reference Amount ) on the Business Day immediately following the last day of the Reinvestment Period (such Business Day, the Reference Date ).

 

Period

  

Amount of Prepayment

During the period from and including the Reference Date to and including the Business Day falling on or immediately prior to the three-month anniversary of the Reference Date    30% of the Reference Amount
Thereafter to and including the Business Day falling on or immediately prior to the six-month anniversary of the Reference Date    10% of the Reference Amount
Thereafter to and including the Business Day falling on or immediately prior to the nine-month anniversary of the Reference Date    10% of the Reference Amount

 

(c) If a Borrowing Base Deficiency shall occur on any date, the Borrower shall within two Business Days thereafter prepay the principal of the Loans in an aggregate principal amount such that, after giving effect to such prepayment, no Borrowing Base Deficiency shall exist.

 

(d) If a Coverage Deficiency shall occur on any date, the Borrower shall within two Business Days thereafter prepay the principal of the Loans in an aggregate principal amount necessary to cause a Coverage Requirement Cure to occur.

 

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(e) Any repayment or prepayment of principal of the Loans made during the Reinvestment Period pursuant to Section 3.1(c), 3.1(d) or 3.7 shall reduce the required amounts of prepayments pursuant to Section 3.1(b) in the direct order of their respective maturities.

 

(f) By notice to the Administrative Agent specifying the date and amount of such reduction, the Borrower may reduce the Maximum Commitment Amount on any Business Day occurring during the Reinvestment Period to an amount not lower than the aggregate principal amount of the Loans outstanding on the date of such reduction.

Interest; Fees

 

3.2(a) The Borrower hereby unconditionally promises to pay to the Administrative Agent for account of the Lenders interest on the unpaid principal amount of each Loan, for the period from and including the initial Borrowing Date for such Loan to but excluding the date that such Loan shall be paid in full, at a rate per annum equal to the Interest Rate as in effect from time to time.

 

(b) The Borrower hereby unconditionally promises to pay to the Administrative Agent for account of the Initial Lender a commitment fee, accruing for each day during the Reinvestment Period, on an amount equal to the excess (if any) of (i) the Maximum Commitment Amount over (ii) the greater of (x) 75% of the Maximum Commitment Amount and (y) the aggregate principal amount of the Loans outstanding, at a rate per annum equal to 0.75%.

 

(c) The Borrower hereby unconditionally promises to pay to the Administrative Agent for account of the Initial Lender a commitment fee, accruing for each day during the Reinvestment Period, on an amount equal to the excess (if any) of (i) 75% of the Maximum Commitment Amount and (ii) the aggregate principal amount of the Loans outstanding, at a rate per annum equal to 2.85%.

 

(d) The Borrower hereby unconditionally promises to pay to the Administrative Agent for account of the Initial Lender a commitment reduction fee equal to 0.75% of the amount of any reduction in the Maximum Commitment Amount (whether pursuant to Section 3.1(f) or Section 6).

 

(e) Any fee payable by the Borrower hereunder, once paid, shall be non-refundable.

Default

3.3 Notwithstanding the foregoing, the Borrower hereby unconditionally promises to pay to the Administrative Agent for account of the Lenders interest on any principal of or interest on the Loans, or any fee or other amount owing to any Loan Party under this Agreement or any Support Document, that shall not be paid in full when due (whether at stated maturity, by acceleration, upon optional or mandatory prepayment or otherwise), for the period from and including the due date of such payment to but excluding the date the same is paid in full, at a rate per annum equal to the Default Rate.

 

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Payment Dates

 

3.4(a) Accrued interest on each Loan shall be payable (i) on each Payment Date in an amount equal to interest accrued for the related Interest Period, (ii) upon the prepayment pursuant to Section 3.7 of any principal of such Loan in an amount equal to interest thereon accrued to but excluding the date of such prepayment and (iii) in the case of interest payable at the Default Rate, from time to time on demand of the Administrative Agent.

 

(b) Unpaid commitment fee referred to in Section 3.2(b) or 3.2(c) and accrued to and including any Quarterly Date shall be payable on the related Payment Date.

 

(d) The amount of any commitment reduction fee referred to in Section 3.2(d) shall be payable on the date of the relevant reduction in the Maximum Commitment Amount.

Interest Computation Basis

3.5 Interest accruing with respect to each Loan for any Interest Period shall accrue for each day during such Interest Period and shall be computed on the basis of a year of 360 days and actual days elapsed. Interest accruing with respect to any other amount for any period shall accrue from and including the first day of such period to but excluding the last day of such period and shall be computed on the basis of a year of 360 days and actual days elapsed. Commitment fee referred to in Section 3.2(b) and 3.2(c) accruing for any period shall accrue from and including the first day of such period to but excluding the last day of such period and shall be computed on the basis of a year of 360 days and actual days elapsed.

Manner of Payment

 

3.6(a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or otherwise) or under any Support Document (except to the extent otherwise provided therein) prior to 1:00 p.m., New York City time, on the date when due, in immediately available funds, without set off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at 399 Park Avenue, New York, New York 10043, except as otherwise expressly provided herein or in any Support Document. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient through its Payment Account promptly following receipt thereof.

 

(b) If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments by the Borrower hereunder or under any Support Document shall be made in USD.

 

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(c) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

 

(d) Except to the extent otherwise provided herein: (i) each payment or prepayment of principal of the Loans by the Borrower shall be made for account of the Lenders pro rata in accordance with the respective portions of the unpaid principal amount of the Loan held by them; (ii) each payment of interest on any Loan by the Borrower shall be made for account of the Lenders pro rata in accordance with the amounts of interest on their respective portions of such Loan then due and payable to the Lenders; and (iii) each commitment fee or commitment reduction fee payable by the Borrower under Section 3.2(b), 3.2(c) or 3.2(d) shall be made for account of the Initial Lender.

 

(e) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from the Loans, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder. The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof. The entries made in such accounts maintained shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans, and to pay interest thereon, in accordance with the terms of this Agreement.

 

(f) Any Lender may request that the portion of the Loans owing to such Lender be evidenced by a promissory note. In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent. Thereafter, the portion of the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant hereto) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).

 

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(g) If any Lender shall, by exercising any right of set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any portion of the Loans owing to such Lender resulting in such Lender receiving payment of a greater proportion thereof then due than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the amounts owing to the other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with paragraph (d) above; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any portion of the Loans to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.

 

(h) Any Lender may change the Payment Account for receiving payments under this Agreement by giving notice of the new Payment Account to the Borrower and the Administrative Agent at least three Business Days prior to the first scheduled date for the payment to which such change applies.

Collection Accounts; Application of Proceeds; Priorities of Payment

 

3.7(a) The Borrower shall from time to time deposit (or cause to be deposited) into the Interest Collection Account, immediately upon receipt thereof, (i) all Interest Proceeds and (ii) any other amounts that are received by the Borrower that are not required hereunder to be deposited into the Principal Collection Account. The Borrower may from time to time (other than on a Payment Date) invest collected funds standing to the credit of the Interest Collection Account in Eligible Investments that are credited to the Interest Collection Account. Any such Eligible Investment shall mature no later than the Payment Date next succeeding the date of such investment.

 

(b) The Borrower shall from time to time deposit (or cause to be deposited) into the Principal Collection Account, immediately upon receipt thereof, (i) all Principal Proceeds, (ii) any proceeds of any advance made under Section 2.2 that is not immediately applied to the purchase of a Term Loan or Bond and (iii) any funds contributed in cash to the capital of the Borrower. The Borrower may from time to time (other than on a Payment Date) invest collected funds standing to the credit of the Principal Collection Account in Eligible Investments that are credited to the Principal Collection Account. Any such Eligible Investment shall mature no later than the Payment Date next succeeding the date of such investment.

 

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(c) No amount shall be withdrawn from either Collection Account except as expressly provided in this Section 3.7.

 

(d) On any Business Day occurring during the Reinvestment Period, the Borrower may apply any amount standing to the credit of the Principal Collection Account to the settlement of a purchase of a Term Loan or Bond; provided that any such application shall be subject to the satisfaction of the following conditions on the “trade date” for such purchase:

 

  (1) no Event of Default or Potential Event of Default has occurred and is continuing or would result from such purchase or application of funds;

 

  (2) no Borrowing Base Deficiency or Coverage Deficiency has occurred and is continuing or would result from such purchase or application of funds;

 

  (3) no Debt Obligation Bankruptcy Event or Debt Obligation Failure to Pay Event has occurred and is continuing with respect to the Term Loan or Bond being purchased; and

 

  (4) the Collateral Quality Test with respect to the Term Loan or Bond being purchased is satisfied after giving effect to such purchase and application of funds; and

(e) All Eligible Investments held in the Collection Accounts (other than Cash) on any Quarterly Date shall be liquidated and held as Cash pending application on the next succeeding Payment Date as provided in this Section 3.7(e) or in Section 3.7(g).

(i) Subject to Section 3.7(f), on each Payment Date occurring during the Reinvestment Period, the collected funds standing to the credit of the Interest Collection Account shall be applied in the following order of priority:

 

  (1) to the payment of taxes and governmental fees owing by the Borrower, if any;

 

  (2) to the payment of any amounts then due and payable by the Borrower to the Custodian, the Security Agent, the Security Agent Custodian or the Collateral Administrator under any Support Document;

 

  (3) to the payment of any amounts then due and payable by the Borrower to the Collateral Manager under the Collateral Management Agreement, except that no such amount shall be payable to the Collateral Manager if irrevocably waived by the Collateral Manager by written notice to the Borrower, the Collateral Administrator and the Administrative Agent;

 

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  (4) to the payment of any amounts (including interest, fees, expenses, indemnities and other amounts, but excluding principal of the Loans) then due and payable by the Borrower to any Loan Party (other than the Custodian, the Security Agent, the Security Agent Custodian or the Collateral Administrator) under this Agreement or any Support Document;

 

  (5) if a Borrowing Base Deficiency or Coverage Deficiency exists (determined after giving effect to any payment under paragraph (ii) below from Principal Proceeds), to the repayment of the principal of the Loans to the extent necessary to eliminate such Borrowing Base Deficiency or to cause a Coverage Requirement Cure, as the case may be;

 

  (6) if so directed by the Collateral Manager, to the repayment of the principal of the Loans;

 

  (7) unless otherwise directed by the Collateral Manager, to the payment by the Borrower of a distribution to its equity owner(s), but only so long no Borrowing Base Deficiency or Coverage Deficiency exists or would result from such payment and distribution; and

 

  (8) for retention in the Interest Collection Account (for subsequent application as provided in this Agreement).

(ii) Subject to Section 3.7(f), on each Payment Date occurring during the Reinvestment Period, the collected funds standing to the credit of the Principal Collection Account shall be applied in the following order of priority:

 

  (1) to the payment of any amounts (including interest, fees, expenses, indemnities and other amounts, but excluding principal of the Loans) then due and payable by the Borrower (but not paid pursuant to paragraph (i) above) to any Loan Party (other than the Custodian, the Security Agent, the Security Agent Custodian or the Collateral Administrator) under this Agreement or any Support Document;

 

  (2) if a Borrowing Base Deficiency or Coverage Deficiency exists, to the repayment of the principal of the Loans to the extent necessary to eliminate such Borrowing Base Deficiency or to cause a Coverage Requirement Cure, as the case may be;

 

  (3) if so directed by the Collateral Manager, to the repayment of the principal of the Loans; and

 

  (4) for retention in the Principal Collection Account (for subsequent application as provided in this Agreement).

(iii) Subject to Section 3.7(f), on each Payment Date occurring after the Reinvestment Period, the collected funds standing to the credit of the Collection Accounts (whether as Interest Proceeds or Principal Proceeds) shall be applied in the following order of priority:

 

  (1) to the payment of taxes and governmental fees owing by the Borrower, if any;

 

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  (2) to the payment of any amounts then due and payable by the Borrower to the Custodian, the Security Agent, the Security Agent Custodian or the Collateral Administrator under any Support Document;

 

  (3) to the payment of any amounts then due and payable by the Borrower to the Collateral Manager under the Collateral Management Agreement, except that no such amount shall be payable to the Collateral Manager if irrevocably waived by the Collateral Manager by written notice to the Borrower, the Collateral Administrator and the Administrative Agent;

 

  (4) to the payment of any amounts (including interest, fees, expenses, indemnities and other amounts, but excluding principal of the Loans) then due and payable by the Borrower to any Loan Party (other than the Custodian, the Security Agent, the Security Agent Custodian or the Collateral Administrator) under this Agreement or any Support Document;

 

  (5) to the repayment of the principal of the Loans until the Loans are paid in full; and

 

  (6) to the payment by the Borrower of a distribution to its equity owner(s).

 

(f) No payment or application of funds shall be made pursuant to Section 3.7(e) if an Event of Default has occurred and is continuing or if an Event of Default or Potential Event of Default would result from such payment or application. In addition, if on any date the amount available to make the full amount of all payments to be made in accordance with any numbered paragraph of Section 3.7(e) or 3.7(g), then such payments shall be made to the Persons entitled thereto under said numbered paragraph pro rata in accordance with the amounts then due and payable to them.

 

(g) On any Payment Date on which no payment or application of funds may be made pursuant to Section 3.7(e) by reason of the first sentence of Section 3.7(f), the collected funds standing to the credit of the Collection Accounts shall be applied in the following order of priority:

 

  (1) to the payment of taxes and governmental fees owing by the Borrower, if any;

 

  (2) to the payment of any amounts then due and payable by the Borrower to the Custodian, the Collateral Administrator, the Security Agent or the Security Agent Custodian under any Support Document;

 

  (3) to the payment of any amounts then due and payable by the Borrower to the Collateral Manager under the Collateral Management Agreement, except that no such amount shall be payable to the Collateral Manager (i) if irrevocably waived by the Collateral Manager by written notice to the Borrower, the Collateral Administrator and the Administrative Agent or (ii) if so directed by the Administrative Agent;

 

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  (4) to the payment of any interest or fees then due and payable under Sections 3.2 and 3.3;

 

  (5) to the repayment of the principal of the Loans until paid in full;

 

  (6) to the payment of any other amounts (including interest, fees, expenses, indemnities and other amounts, but excluding amounts payable under paragraphs (4) and (5) above) then due and payable by the Borrower to any Loan Party (other than the Custodian, the Security Agent, the Security Agent Custodian or the Collateral Administrator) under this Agreement or any Support Document;

 

  (7) to the payment of any amounts then due and payable by the Borrower to the Collateral Manager under the Collateral Management Agreement (and not paid at the direction of the Administrative Agent pursuant to clause (ii) of paragraph (3) above), except that no such amount shall be payable to the Collateral Manager if irrevocably waived by the Collateral Manager by written notice to the Borrower, the Collateral Administrator and the Administrative Agent; and

 

  (8) to the payment by the Borrower of a distribution to its equity owner(s).

 

(h) Any payment required to be made to any Loan Party by the Borrower under this Agreement or any Support Document shall be made in accordance with this Section 3.7.

 

(i) Each Loan Party hereby agrees, and the Collateral Manager as provided in Section 5 of the Collateral Management Agreement has separately agreed (in each case, for the benefit of each other Loan Party and the Collateral Manager, as the case may be, but without limiting the effect of the second sentence of Section 3.7(h)), that its claims to amounts payable in accordance with the priorities set forth in any paragraph of Section 3.7(e) or 3.7(g) (other than paragraph (1) thereof) that such claims shall be subordinate and junior to the claims of each Person in accordance with any prior paragraph of Section 3.7(e) or 3.7(g), in each case, to the extent and in the manner set forth in Section 3.7(e) or 3.7(g), as the case may be.

Taxes

 

3.8(a)

All payments under this Agreement for account of the Administrative Agent or any Lender will be made without any deduction or withholding for or on account of any present or future tax, levy, impost, duty, charge, assessment or fee of any nature (a Tax ) unless such deduction or withholding is required by any applicable law, as modified by the practice of any relevant governmental revenue authority, then in effect. If the Borrower is required to withhold or deduct for or on account of any Tax in respect of this Agreement for account of the Administrative Agent or any Lender, the Borrower will: (1) promptly notify the affected payee of such requirement; (2) pay to the relevant authorities the full amount required to be deducted

 

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  or withheld promptly upon the earlier of determining that such deduction or withholding is required or receiving notice that such amount has been assessed; (3) promptly forward to the affected payee (with a copy to the Administrative Agent if it is not the affected payee) an official receipt (or a certified copy) evidencing such payment to such authorities; and (4) unless such Tax is an Excluded Tax pay to such payee such additional amount (an Additional Amount ) as is necessary to ensure that the net amount actually received by such payee (free and clear of all Taxes other than Excluded Taxes, whether assessed against the Borrower or such payee) will equal the full amount such payee would have received in respect of this Agreement had no such deduction or withholding been required; provided that the Borrower will not be required to pay any Additional Amount with respect to any Tax that is:

 

  (i) imposed other than by withholding;

 

  (ii) an estate, inheritance, gift, sale, transfer, personal property or similar tax;

 

  (iii) imposed by reason of the failure of such payee, or beneficial owner of an interest in this Agreement if not such payee (after reasonable notice by such payee), to provide the Borrower on a timely basis, with any forms, certificates or other documentary evidence that is required to avoid the imposition of such Tax, including any such form, certificate or other documentary evidence as required pursuant to FATCA;

 

  (iv) imposed by reason of any change in any Payment Account pursuant to Section 3.6 not agreed to by the Borrower at the time of such change; or

 

  (v) imposed by reason of any combination of clauses (i), (ii), (iii) and (iv);

provided , however, that no Foreign Lender shall be entitled to receive an Additional Amount unless such Foreign Lender is entitled to an exemption from Tax under either (x) the laws of the United States of America or (y) a tax treaty to which the United States of America is a party, with respect to payments under this Agreement. Such Foreign Lender shall deliver to the Borrower such properly completed and executed documentation prescribed by applicable law or reasonably requested by the Borrower as will permit such payments to be made without withholding.

 

(b) If a Change in Tax Law results, or would result upon the passage of time, in a payment of an Additional Amount to a Foreign Lender, then such Foreign Lender shall take such steps as may be reasonably available to it to mitigate the effects of such Change in Tax Law (which shall include efforts to rebook this Agreement at another lending office or through another branch or an affiliate of the Foreign Lender), provided that such Foreign Lender shall not be required to take any step that would be materially disadvantageous to its business or operations (as determined by the Foreign Lender in its reasonable discretion). If the Foreign Lender does not promptly take the steps necessary to avoid the need for Additional Payments, the Borrower shall have the right to redomicile (in consultation with the Initial Lender) in a jurisdiction that would not give rise to a withholding obligation.

 

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(c) If the Borrower makes a payment of any Additional Amount and the affected payee receives a refund, credit or other tax benefit that is attributable to the Tax in respect of which the Additional Amount is paid, such payee will promptly upon receipt of such refund, credit or benefit, pay to the Borrower such amount as will in such payee’s sole determination, leave such payee no better or worse off than if no payment of the Additional Amounts had been required; provided that nothing herein will limit the ability of such payee to prepare its tax returns in the manner it so determines in its sole discretion.

 

(d) The Borrower will pay any Stamp Tax levied or imposed upon the Borrower or in respect of its execution or performance of this Agreement by a jurisdiction in which it is incorporated, organized, managed and controlled, or considered to have its seat, or in which a branch or office through which it is acting for the purpose of this Agreement is located ( Stamp Tax Jurisdiction ) and will indemnify the affected payee (and, to the extent it has made any payment on behalf of the Borrower, the Administrative Agent) against any Stamp Tax levied or imposed upon such payee or in respect of such payee’s execution or performance of this Agreement by any such Stamp Tax Jurisdiction which is not also a Stamp Tax Jurisdiction with respect to such payee.

Alternate Rate of Interest

3.9 If prior to the commencement of any Interest Period:

 

(a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining LIBOR for such Interest Period; or

 

(b) the Administrative Agent is advised by the Required Lenders that LIBOR for such Interest Period will not adequately and fairly reflect the cost to the Lenders of making or maintaining their respective portions of the Loans for such Interest Period;

then the Administrative Agent shall give notice thereof to the Borrower and the Lenders as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, each Loan shall bear interest at a rate per annum equal to the Federal Funds Effective Rate on each day plus 5.85%; provided that, for the purposes of determining whether LIBOR for such Interest Period will or will not adequately and fairly reflect the cost to the Lenders of making or maintaining their respective portions of the Loans for such Interest Period, no Lender shall give the advice referred to in clause (b) above unless such Lender is giving such advice generally under credit or other loan documentation having provisions similar to this Section 3.9 with respect to borrowers similarly situated to the Borrower.

 

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Increased Costs

 

3.10(a) If any Change in Law shall:

 

  (i) impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in LIBOR); or

 

  (ii) impose on any Lender or the London interbank market any other condition affecting this Agreement or the portion of the Loans made or maintained by such Lender;

and the result of any of the foregoing shall be to increase the cost to such Lenders of making or maintaining their respective portions of the Loans or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise, but excluding increased costs or reductions in the amount of any sum received or receivable resulting from (1) an Excluded Tax or (2) a Tax to the extent Additional Amounts are required to be paid under Section 3.8(a) (or would be but for clauses (iii) or (iv) of the first proviso to Section 3.8(a))), then the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.

 

(b) If any Lender determines that any Change in Law regarding capital requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement or the portion of the Loans made or maintained by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.

 

(c) A certificate of a Lender setting forth in reasonable detail the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. No Lender shall be entitled to require the payment of any compensation specified in paragraph (a) or (b) of this Section unless such Lender is generally seeking the payment of similar additional amounts from similarly situated borrowers in comparable credit facilities to the extent such Lender is entitled thereunder to do so. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.

 

(d)

Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than six months prior to the date

 

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  that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof.

 

(e) If a Debt Obligation Bankruptcy Event or Debt Obligation Failure to Pay Event occurs with respect to any Debt Obligation, the Administrative Agent may, by notice to the Borrower, adjust the Advance Rate with respect to such Debt Obligation. Such notice shall specify the adjusted Advance Rate and the date on which such adjustment is to become effective (which shall be not less than three Business Days after the date of such notice).

Break Funding Payments

3.11 In the event that (a) the payment of any principal of the Loans is made on any date other than a Payment Date (including as a result of an Event of Default) or (b) the Borrower fails to borrow any Loan or a portion thereof on the related Borrowing Date after giving notice of such borrowing to the Administrative Agent, then, in any such event, the Borrower shall compensate each Lender for an amount equal to the excess, if any, of (i) the amount of interest that such Lender would pay for a deposit equal to the principal amount of its portion of the Loan(s) for the period from the date of such payment to the last day of the then current Interest Period for such Loan(s) (or, in the case of a failure to borrow, equal to its portion of the amount of such borrowing for the duration of the Interest Period that would have resulted from such borrowing) if the interest rate payable on such deposit were equal to LIBOR for such Interest Period over (b) the amount of interest that such Lender would earn on such principal amount for such period if such Lender were to invest such principal amount for such period at the interest rate that would be bid by such Lender (or an affiliate of such Lender) for dollar deposits from other banks in the eurodollar market at the commencement of such period. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof. For purposes of determining compensation payable by the Borrower pursuant to this Section 3.11, each Interest Period will be determined without giving effect to any adjustment to the length thereof that may be provided for in the Debt Obligation Agreement as a result of any unscheduled payment of principal.

Right of Set-Off

3.12 The Borrower agrees that, in addition to (and without limitation of) any right of set-off that the Administrative Agent or any Lender may otherwise have, each of the Administrative Agent and the Lenders shall be entitled, at its option, to offset amounts owing by the Administrative Agent or such Lender, as the case may be, to the Borrower, in USD or in any other currency (irrespective of the place of payment or booking office of the obligation and regardless of whether such amounts are then due to the Borrower), against any amount payable by the Borrower to the Administrative Agent or such Lender,

 

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as the case may be, under this Agreement that is not paid when due. For this purpose, any amount owing by the Administrative Agent or any Lender to the Borrower may be converted by the Administrative Agent or such Lender, as the case may be, into the currency in which the amount payable by the Borrower to the Administrative Agent or such Lender, as the case may be, under this Agreement is denominated at the rate of exchange at which the Administrative Agent or such Lender, as the case may be, would be able, acting in a reasonable manner and in good faith, to purchase the relevant amount of such currency.

Contractual Currency

3.13 To the fullest extent permitted by applicable law, if any judgment or order expressed in a currency other than the currency in which a payment is required by this Agreement is to be made by the Borrower (the Contractual Currency ) is rendered:

 

(a) for the payment of any amount owing in respect of this Agreement; or

 

(b) in respect of a judgment or order of another court for the payment of any amount described in the foregoing clause (a),

the recipient of such payment, after recovery in full of the aggregate amount to which the recipient of such payment is entitled pursuant to the judgment or order, will be entitled to receive immediately from the Borrower the amount of any shortfall of the Contractual Currency received by the recipient of such payment as a consequence of sums being paid in such other currency if such shortfall arises or results from any variation between the rate of exchange at which the Contractual Currency is converted into the currency of the judgment or order for the purposes of such judgment or order and the rate of exchange at which the recipient of such payment is able, acting in a reasonable manner and in good faith in converting the currency received into the Contractual Currency, to purchase the Contractual Currency with the amount of the currency of the judgment or order actually received by the recipient of such payment. The term “rate of exchange” includes any premiums and costs of exchange payable in connection with the purchase of or conversion into the Contractual Currency.

To the fullest extent permitted by applicable law, the indemnities in this Section constitute separate and independent obligations from the other obligations in this Agreement and any related document, will be enforceable as separate and independent causes of action, will apply notwithstanding any indulgence granted by the recipient of such payment and will not be affected by judgment being obtained or claim or proof being made for any other sums payable in respect of this Agreement or any related document. The Borrower hereby waives the right to invoke any defense of payment impossibility.

 

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R EPRESENTATIONS AND W ARRANTIES

Borrower’s Representations and Warranties

4.1 On each Representation Date, the Borrower hereby represents and warrants to the Administrative Agent and the Lenders as follows:

 

(a) Status . It is duly formed and validly existing as a limited liability company under the laws of the State of Delaware and is in good standing under such laws.

 

(b) Powers . It has the power to execute this Agreement and any Support Document to which it is a party, to deliver this Agreement and any Support Document to which it is a party and to perform its obligations under this Agreement and any obligations it has under any Support Document to which it is a party and has taken all necessary action to authorize such execution, delivery and performance.

 

(c) No Violation or Conflict . Such execution, delivery and performance do not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets.

 

(d) Consents . All governmental and other consents that are required to have been obtained by it with respect to this Agreement or any Support Document to which it is a party have been obtained and are in full force and effect and all conditions of any such consents have been complied with.

 

(e) Obligations Binding . This Agreement and any Support Document to which it is a party constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law)).

 

(f) Absence of Certain Events . No Event of Default or Potential Event of Default has occurred and is continuing and no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement or any Support Document to which it is a party.

 

(g) Absence of Litigation . There is not pending or, to its knowledge, threatened against it or any of its affiliates any action, suit or proceeding at law or in equity or before any court, tribunal, governmental body, agency or official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or any Support Document to which it is a party or its ability to perform its obligations under this Agreement or such Support Document.

 

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(h) Accuracy of Specified Information . All applicable information that is furnished in writing by or on behalf of it to any of the Lenders, the Administrative Agent or the Security Agent is, when taken as a whole as of the date of the furnishing of such information, true, accurate and (except as redacted) complete in all material respects.

 

(i) Investment Company Act Status . It is not required to register as an investment company under the Investment Company Act by reason of Section 3(c)(7) of the Investment Company Act.

 

(j) Non-Reliance . It is acting for its own account, and it has made its own independent decisions to borrow the Loans and to use the proceeds thereof to purchase the Debt Obligation as contemplated hereby and as to whether such issuance, sale and purchases are appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. It is not relying on any communication (written or oral) of the Administrative Agent, any Lender or any of their respective Affiliates as investment, tax, accounting or legal advice or as a recommendation to enter into this Agreement, to borrow the Loans or to purchase Debt Obligation, it being understood that information and explanations related to the terms and conditions of this Agreement or of the Loans or such purchase will not be considered investment advice or a recommendation to enter into this Agreement, to borrow the Loans or to purchase Debt Obligation. No communication (written or oral) received from the Administrative Agent, any Lender or any of their respective Affiliates will be deemed to be an assurance or guarantee as to the expected results of entering into this Agreement, borrowing the Loans or purchasing the Debt Obligation. It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of entering into this Agreement, borrowing the Loans or purchasing the Debt Obligation. None of the Administrative Agent, the Lenders and their respective Affiliates is acting as a fiduciary for or an adviser to the Borrower or any of its Affiliates in respect of this Agreement or the use of the proceeds thereof.

 

(k) Lenders May Deal with Obligors on the Debt Obligation, etc . It acknowledges that the Administrative Agent, any Lender or any of their respective Affiliates may deal in the Debt Obligation and any other obligations of any Obligor or any Affiliate thereof and may accept deposits from, make loans or otherwise extend credit to, and generally engage in any kind of commercial or investment banking or other business with any Obligor, any Affiliate of any Obligor, any other person or entity having obligations relating to any Obligor and may act with respect to such business in the same manner as if this Agreement did not exist and may originate, purchase, sell, hold or trade, and may exercise consensual or remedial rights in respect of, obligations, securities or other financial instruments of, issued by or linked to any Obligor, regardless of whether any such action might have an adverse effect on such Obligor, the value of the Debt Obligation or otherwise.

 

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C OVENANTS

Borrower’s Covenants

5.1 The Borrower covenants and agrees with the Administrative Agent and the Lenders that, until payment in full of the Loans and all interest thereon and all other amounts payable by the Borrower under this Agreement:

 

(a) Information . The Borrower will:

 

  (i) no later than one Business Day after the trade date for any purchase of a Debt Obligation (or any portion thereof) occurring after the date of this Agreement, furnish the Administrative Agent with the Par Amount and Purchase Price applicable to such acquisition;

 

  (ii) no later than one Business Day after the settlement date for any purchase of a Debt Obligation (or any portion thereof) occurring after the date of this Agreement, furnish the Administrative Agent with a copy of the related Assignment Agreement;

 

  (iii) promptly (and in any event within three Business Days after receipt) deliver or cause to be delivered to the Administrative Agent the following information and documentation, in each case, to the extent actually received by the Borrower from the Obligor or its agents in respect of the Debt Obligation: all notices of any borrowings, prepayments and interest rate settings, all financial statements, all compliance certificates, all amendments, waivers and other modifications (whether final or proposed) in relation to the terms of the Debt Obligation; and all notices given by the Obligor to the lenders or their agent or by the lenders or their agent to the Obligor in relation to the exercise of remedies;

 

  (iv) furnish, or cause the Collateral Administrator to furnish, to the Administrative Agent, within 30 days after the end of each calendar month, an investment report setting forth the identity and amount of each Debt Obligation held by the Borrower at the end of such calendar month;

 

  (v)

subject to timely receipt from the Administrative Agent of information relating to (A) the Debt Obligations held by the Borrower as of each Business Day, in respect of each Debt Obligation’s Purchase Price, Current Price and Advance Rate, and (B) the Net Equity Amount as of such Business Day and Average Advance Rate as of such Business Day, furnish to the Administrative Agent, no less frequently than once each calendar week, a certificate (x) setting forth computations in reasonable detail of (1) the Borrowing Base on a Business Day during such calendar week, (2) the Coverage Requirement on such Business Day and (3) the Net Equity Amount on such Business Day ( provided that, for purposes of determining the Current Price in the definition of

 

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  “Current Value” as used in the definition of “Net Equity Amount”, all the words beginning with “If the Borrower disputes” in the second line of the definition of “Current Price” and ending with the words “the relevant date of determination” in the third last line of the definition of “Current Price” shall be disregarded) and (y) stating whether a Borrowing Base Deficiency or Coverage Deficiency exists as of such Business Day;

 

  (vi) furnish to the Administrative Agent, with respect to the Investor, a quarterly financial report delivered no later than 60 days after the relevant quarter-end for the first three fiscal quarters of any fiscal year of the Investor and an annual financial report delivered no later than 120 days after the relevant quarter-end for the final fiscal quarter of any fiscal year of the Investor, provided that the obligation of the Borrower in this clause (vi) shall be deemed to be satisfied in full following the timely filing by the Investor of the corresponding quarterly and annual financial statements that are included in periodic filings made by the Investor with the SEC in accordance with the relevant applicable SEC requirements;

 

  (vii) promptly after the Borrower knows or has reason to believe that any Debt Obligation Bankruptcy Event, Debt Obligation Failure to Pay Event or Collateral Manager Termination Event (as defined in the Collateral Management Agreement) has occurred, the Borrower will deliver to the Administrative Agent and each Lender a notice thereof describing the same in reasonable detail;

 

  (viii) provide the Administrative Agent with such other information regarding the business, assets, operations or condition, financial or otherwise, of the Borrower as the Administrative Agent may reasonably request (including on behalf of any Lender);

 

  (ix) permit representatives of the Administrative Agent, during normal business hours, to examine, copy and make extracts from its books and records, to inspect any of its Property, and to discuss its business and affairs with its officers, all to the extent reasonably requested by the Administrative Agent (including on behalf of any Lender); provided that, except during any period when an Event of Default has occurred and is continuing, no such examination, copying or inspection shall occur more than twice during any calendar year; and

 

  (x) no later than two Business Days after each Quarterly Date, provide, or cause the Collateral Administrator to provide, to the Administrative Agent, a report setting out in reasonable detail the proposed payments to be made by the Borrower on the related Payment Date

 

(b) Notice of Default . Promptly after the Borrower knows or has reason to believe that any Event of Default or Potential Event of Default has occurred, the Borrower will deliver to the Administrative Agent and each Lender a notice thereof describing the same in reasonable detail and, together with such notice or as soon thereafter as possible, a description of the action that the Borrower has taken or proposes to take with respect thereto.

 

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(c) Conduct of Business, etc . The Borrower will: (i) preserve and maintain its legal existence and all of its material rights, privileges, licenses and franchises; (ii) comply with the requirements of all applicable laws, rules, regulations and orders of governmental or regulatory authorities; (iii) pay and discharge all taxes, assessments and governmental charges or levies imposed on it or on its income or profits or on any of its Property prior to the date on which penalties attach thereto, except for any such tax, assessment, charge or levy the payment of which is being contested in good faith and by proper proceedings and against which adequate reserves are being maintained; (iv) maintain all of its Property used or useful in its business in good working order and condition, ordinary wear and tear excepted; and (v) keep adequate records and books of account, in which complete and consistent entries will be made, except to the extent that the failure to comply with any of the foregoing would not, individually or in the aggregate, result in a Material Adverse Effect.

 

(d) Indebtedness . The Borrower will not create, incur, assume or permit to exist any Indebtedness, except Indebtedness arising under this Agreement and the Security Agreement.

 

(e) Liens . The Borrower will not create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, except for Liens arising under the Security Agreement.

 

(f) Use of Proceeds . The Borrower will not use any proceeds of this Agreement except in compliance with Section 2.3.

 

(g) Line of Business . The Borrower will not engage in any business other than (i) acquiring interests in Term Loans and Bonds, (ii) entering into and performing its obligations under this Agreement and the other Transaction Documents to which it is a party, (iii) making Eligible Investments with the proceeds of the Debt Obligation or any equity contribution made to the Borrower and (iv) other activities that are incidental to activities specified in the foregoing clauses. Prior to the date hereof, the Borrower will not have engaged in any business other than (i) the negotiation of the terms of the Transaction Documents and (ii) transactions incidental to the formation of the Borrower. The Borrower will use all commercially reasonable efforts to cause any purchase of a Term Loan or Bond to settle no later than 30 days after the applicable trade date.

 

(h) Fundamental Changes . The Borrower will not merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of all or substantially all of its assets, or liquidate or dissolve, except that the Borrower may effect any sale of the Debt Obligation to the extent such sale is otherwise permitted by this Agreement.

 

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(i) Transactions with Affiliates . The Borrower will not sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (i) for capital contributions made in Cash to the Borrower, (ii) transactions expressly permitted by Section 5.2 and (iii) Equity Restricted Payments expressly permitted by Section 5.1(j).

 

(j) Restricted Payments . The Borrower will not make any Equity Restricted Payment except as expressly permitted by Section 3.7(e) or 3.7(g).

 

(k) Investment in Term Loans and Bonds . The Borrower will not acquire any record or beneficial ownership of any interest in any Term Loan or Bond except for the purchase for Cash of record and beneficial ownership in a Term Loan or Bond in compliance with the following conditions:

 

  (i) the Initial Lender shall have consented to such purchase (and to the Purchase Price payable with respect to such purchase);

 

  (ii) no Event of Default or Potential Event of Default has occurred and is continuing or would result from such purchase;

 

  (iii) no Borrowing Base Deficiency or Coverage Deficiency has occurred and is continuing or would result from such purchase;

 

  (iv) no Debt Obligation Bankruptcy Event or Debt Obligation Failure to Pay Event has occurred and is continuing; and

 

  (v) the Collateral Quality Test with respect to the Term Loan or Bond being purchased is satisfied after giving effect to such purchase.

 

(l) Investments . The Borrower will not own or acquire, and will not make any investment in, any Subsidiary. The Borrower will not make any investment other than Investments in (i) Term Loans, (ii) Bonds and (iii) Eligible Investments.

 

(m) Collateral Management Agreement . The Borrower will not amend, supplement or otherwise modify or termination, or agree to amend, supplement or otherwise modify or terminate, the Collateral Management Agreement, without the prior written consent of the Administrative Agent and each Lender.

 

(n)

Corporate Separateness . The Borrower will ensure that all corporate or other formalities necessary to maintain its separate existence (including holding regular board of directors’ and shareholders’, or other similar, meetings) are followed. In addition, the Borrower will not take any action, or conduct its affairs in a manner, that is likely to result in its separate existence being ignored or in its assets and liabilities being substantively consolidated with any other Person in a bankruptcy, reorganization or other insolvency proceeding. Without limiting the foregoing, the Borrower will not (i) commingle any of its funds or assets with those of any

 

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  Related Party or (ii) maintain its accounts, books, records, accounting records and other entity documents together with those of any other Related Party ( provided that the foregoing will not prevent financial reporting on a consolidated basis to the extent required by GAAP).

 

(o) Amendments to Debt Obligations . Following the occurrence of a Collateral Manager Termination Event, the Borrower shall not, without the prior written consent of the Administrative Agent in its sole discretion, enter into any amendment, waiver, consent or other modification in relation to the terms of any Debt Obligation or the underlying loan documents with respect thereto.

Certain Transactions with Affiliates

5.2 Without the prior consent of the Administrative Agent, the Borrower shall not, after the initial Borrowing Date, purchase any Term Loan or Bond from any Related Party or from any Affiliate of CM or any fund managed by CM or any of its Affiliates. Without the prior consent of the Administrative Agent, the Borrower shall not sell the Debt Obligation (or any portion thereof) to any Related Party; provided that this Section 5.2 shall not prevent the Borrower from (and no consent from the Administrative Agent shall be required prior to) selling the Debt Obligation (or any portion thereof) to a Related Party if (a) no Event of Default or Potential Event of Default shall have occurred and be continuing and would not result therefrom, (b) the condition in Section 5.3 is satisfied with respect to such sale and (c) the Debt Obligation (or portion thereof) is being sold solely for Cash and in a market transaction at a sale price (expressed as a percentage of par and will be determined exclusive of accrued interest and premium) not less than the Current Price; in each case, so long as (i) such sale is effected in accordance with the requirements of the Investment Advisers Act applicable to an investment adviser registered as such thereunder and (ii) notice of such sale is given to the Administrative Agent and each Lender no later than the date of such sale. For the purposes of the foregoing proviso, a sale of the Debt Obligation (or any portion thereof) to any Affiliate of CM or any fund managed by CM or any of its Affiliates shall be deemed to have been made at not less than the Current Price if the sale price (expressed as a percentage of par and will be determined exclusive of accrued interest and premium) is not less than the arithmetic average of the midpoint of the bid and ask prices reflected in bona fide quotes obtained from at least two Approved Buyers on the trade date for the sale of the Debt Obligation.

Sale of Debt Obligation

5.3 The Borrower shall not sell the Debt Obligation (or any portion thereof) unless either (a) the net cash proceeds resulting from such sale will be sufficient to pay all amounts payable pursuant to clauses (1) through (5) of Section 3.7(e)(iii) (assuming, for this purpose, that the Reinvestment Period had terminated) or (b) each of the following conditions is satisfied: (i) no Event of Default or Potential Event of Default has occurred and is continuing or would result from such sale; and (ii) no Borrowing Base Deficiency or Coverage Deficiency has occurred and is continuing or would result from such sale.

 

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D EFAULT ; R EMEDIES

Events of Default

6.1 If one or more of the following events (herein called Events of Default ) shall occur and be continuing:

 

(a) the Borrower shall default in the payment of any principal, interest or other amount owing under this Agreement or any Support Document when due (whether at stated maturity, by acceleration, upon optional or mandatory prepayment or otherwise, and whether any such default in payment resulted from the insufficiency of funds available to make such payment in accordance with Section 3.7) and such default shall continue for at least five Business Days after notice thereof to the Borrower by the Administrative Agent or any Lender; or the Borrower shall fail to cause any amount to be disbursed on any Payment Date as required by Section 3.7(e); or

 

(b) any representation, warranty or certification made herein or pursuant hereto or in or pursuant to any Support Document (or in any modification or supplement hereto or thereto) by the Borrower shall prove to have been false or misleading as of the time made in any material respect and such default (if remediable) shall continue unremedied for a period of at least 10 days after the Borrower has notice or knowledge thereof; or

 

(c) the Borrower shall default in the performance of any of its obligations under any of Sections 5.1(f), 5.1(g), 5.1(h), 5.1(i), 5.1(j), 5.1(l), 5.1(m), 5.2 and 5.3 (in the case of Sections 5.1(i) and 5.1(j), except as otherwise expressly provided in the immediately succeeding clause); the Borrower shall in good faith and without knowledge thereof (subject to the exercise of due care) default in the performance of any of its obligations under any of Sections 5.1(i) and 5.1(j) and such default (if remediable) shall continue unremedied for a period of at least three Business Days after the Borrower has notice or knowledge thereof; or the Borrower shall default in the performance of any of its other obligations hereunder or of any obligations under any Support Document and such default (if remediable) shall continue unremedied for a period of at least 30 days after notice thereof to the Borrower by the Administrative Agent or any Lender; or

 

(d)

the Borrower or the Investor shall (1) be dissolved (other than pursuant to a consolidation, amalgamation or merger); (2) fail or admit in writing its inability generally to pay its debts as they become due; (3) make a general assignment, arrangement or composition with or for the benefit of its creditors; (4) institute or have instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition shall be presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition (A) results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation or (B) is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof; (5) have a resolution passed for its winding-up, official management or

 

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  liquidation (other than pursuant to a consolidation, amalgamation or merger); (6) seek or become subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets; (7) have a secured party take possession of all or substantially all its assets or have a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party shall maintain possession, or any such process shall not be dismissed, discharged, stayed or restrained, in each case within 30 days thereafter; (8) cause or become subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in clauses (1) to (7) (inclusive); or (9) take any action indicating its consent to, approval of, or acquiescence in, any of the foregoing acts; or

 

(e) the Borrower Formation Documents shall be amended, supplemented or otherwise modified, or shall be terminated, without the prior written consent of the Administrative Agent and each Lender, except for any amendment, supplement or other modification that would not have a Material Adverse Effect; or

 

(f) the Borrower shall disaffirm, disclaim, repudiate or reject in writing, in whole or in part, or challenge in writing the validity of, any Support Document to which it is a party; or

 

(g) any Support Document shall fail to be in full force or effect or shall be amended, supplemented or otherwise modified, or shall be terminated, without the prior written consent of the Administrative Agent and each Lender; or

 

(h) all of the ownership interests in the Borrower shall fail to be beneficially owned and controlled, either directly or at one or more indirect levels of beneficial ownership, by the Investor; or the Investor shall fail to be managed on a discretionary basis by CM or any Person Controlled by CM; or

 

(i) (i) any failure of the Borrower to maintain at least one independent director (as defined in the Borrower Formation Documents), (ii) the Borrower or Investor shall cause any such independent director to be removed without “cause”, (iii) the Borrower or the Investor shall appoint any such independent director not approved by the Administrative Agent or (iv) the Borrower fails to comply with any provision of any of the Borrower Formation Documents intended to ensure the bankruptcy remoteness of the Borrower; or

 

(j) the Investor NAV as of the last day of any fiscal quarter of the Investor shall be less than (1) 65% of the Investor NAV as of the last day of the immediately preceding fiscal quarter of the Investor or (2) 50% of the Investor NAV as of the last day of any of the three immediately preceding fiscal quarters of the Investor preceding the fiscal quarter of the Investor referred to in clause (1); or

 

(k) the Borrower, or the pool of Collateral, shall be required to register as an investment company under the Investment Company Act; or

 

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(l) the Investor violates (x) Section 18(a)(1)(A), as modified by Section 61(a)(1) or any successor provisions thereto, of the Investment Company Act, or (y) Section 18(c), as modified by Section 61(a)(2) or any successor provisions thereto, of the Investment Company Act, in each case, as determined by the Securities and Exchange Commission (the SEC ) or its staff and after giving effect to, in either case, any exemptive relief granted to the Investor by the SEC; or the Investor’s election to be regulated as a business development company pursuant to Section 54 of the Investment Company Act is revoked or withdrawn;

 

(m) the Security Agent shall fail to have a valid and perfected first priority security interest in any of the Collateral; or

 

(n) (1) a default, event of default or other similar condition or event (howsoever described) in respect of one or more of the Investor and its Subsidiaries under one or more agreements or instruments relating to Indebtedness of any of them (individually or collectively) where the aggregate principal amount of such agreements or instruments, either alone or together with the amount, if any, referred to in clause (2) below, is not less than the Default Threshold which has resulted in such Indebtedness, in each case, becoming due and payable under such agreements or instruments, and such default, event of default or other similar condition or event (howsoever described) is continuing; or (2) a default by one or more of the Investor and its Subsidiaries (individually or collectively) in making one or more payments under such agreements or instruments on the due date for payment (after giving effect to any applicable notice requirement or grace period) in an aggregate amount, either alone or together with the amount, if any, referred to in clause (1) above, of not less than the Default Threshold, and such default is continuing; or

 

(o) the rendering of one or more judgments or decrees or orders against one or more of the Investor and its Subsidiaries involving in the aggregate a liability of the Default Threshold or more and the same shall not have either (1) discharged or provided for the discharge of any such judgment, decree or order in accordance with its terms or (2) perfected a timely appeal of such judgment, decree or order and caused the execution of same to be stayed during the pendency of the appeal; or one or more of the Investor and its Subsidiaries shall have made payments of amounts in excess of the Default Threshold in settlement of any litigation claim or dispute (excluding payments made from insurance proceeds); or

 

(p) a Collateral Manager Termination Event (as defined in the Collateral Management Agreement) shall occur;

THEREUPON: (1) in the case of an Event of Default other than one specified in clause (1), (3), (5), (6) or, to the extent analogous thereto, (8) of Section 6.1(d) in relation to the Borrower, the Required Lenders may, by notice to the Borrower, (a) declare the principal of and interest on this Agreement and/or any other amount owing under this Agreement to be forthwith due and payable, whereupon such amounts shall be immediately due and payable without presentment, demand, protest or other formalities of any kind, all of which are hereby expressly waived by the Borrower and/or (b) terminate the Reinvestment

 

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Period as of the date specified in such notice; and (2) in the case of the occurrence of an Event of Default specified in clause (1), (3), (5), (6) or, to the extent analogous thereto, (8) of Section 6.1(d) in relation to the Borrower, (a) the principal of and interest on this Agreement and all other amounts owing under this Agreement shall automatically become immediately due and payable without presentment, demand, protest or other formalities of any kind, all of which are hereby expressly waived by the Borrower and (b) the Reinvestment Period shall automatically terminate as of the date of occurrence of such Event of Default. The Administrative Agent shall (x) in the case of the Event of Default referred to in Clause (1) of this paragraph, simultaneously with the delivery of the notice in Clause (1)(a), or (y) in the case of an Event of Default referred to in clause (2), at such time of the occurrence of such Event of Default, deliver a notice to the Security Agent that an Event of Default has occurred.

A DMINISTRATIVE A GENT

7.1 Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the Support Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.

7.2 The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder.

7.3 The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the Support Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Potential Event of Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the Support Documents that the Administrative Agent is required to exercise in writing by the Required Lenders, and (c) except as expressly set forth herein and in the Support Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any Support Document, (ii) the contents of any certificate, report or other document delivered

 

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hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any Support Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Schedule I or elsewhere herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.

7.4 The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for an Obligor), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

7.5 The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub agents appointed by the Administrative Agent. The Administrative Agent and any such sub agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub agent and to the Related Parties of the Administrative Agent and any such sub agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Each Lender by its execution and delivery of this Agreement agrees, as contemplated by the Security Agreement, that, in the event it shall hold any Eligible Investments referred to therein, such Eligible Investments shall be held in the name and under the control of such Lender, and such Lender shall hold such Eligible Investments as a collateral sub agent for the Administrative Agent thereunder. The Borrower, by its execution and delivery of this Agreement, hereby consents to the foregoing.

7.6 Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, after prior written consent from the Borrower (not to be unreasonably withheld and not to be required if an Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and with the prior written consent of the Borrower (not to be unreasonably withheld and not to be required if an Event of Default has occurred and is continuing), appoint a successor Administrative Agent, which shall be a bank with an office in New York City or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent and the retiring Administrative Agent shall be discharged

 

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from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Section and Section 8.1 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Administrative Agent.

7.7 Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any Support Document or any related agreement or any document furnished hereunder or thereunder.

7.8 Except as otherwise provided in Section 8.4(a) with respect to this Agreement, the Administrative Agent may, with the prior consent of the Required Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the Support Documents, provided that, without the prior consent of each Lender, the Administrative Agent shall not (except as provided herein or in the Support Documents) release any collateral or otherwise terminate any Lien under any Support Document providing for collateral security, agree to additional obligations being secured by such collateral security (unless the Lien for such additional obligations shall be junior to the Lien in favor of the other obligations secured by such Support Document, in which event the Administrative Agent may consent to such junior Lien provided that it obtains the consent of the Required Lenders thereto), alter the relative priorities of the obligations entitled to the benefits of the Liens created under the Security Agreement, except that no such consent shall be required, and the Administrative Agent is hereby authorized, to release any Lien covering property that is the subject of either a disposition of property permitted hereunder.

M ISCELLANEOUS

Indemnification; Expenses

8.1 The Borrower shall indemnify the Administrative Agent and each Lender, and each Affiliate of any of the foregoing Persons and each of their respective officers, directors and employees (each such Person being called an Indemnitee ) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Transaction Document or any agreement or instrument contemplated hereby or under any other Transaction Document, the performance by the parties hereto of their respective obligations hereunder or any Support Document or the consummation of the transactions contemplated hereby or by any other Transaction Document, (ii) the Loans or the use of the proceeds therefrom or (iii) any actual or

 

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prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee.

The Borrower shall pay (i) all reasonable out of pocket expenses incurred by the Administrative Agent and its Affiliates, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, in connection with the syndication of the credit facilities provided for herein, the preparation and administration of this Agreement and the other Transaction Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out of pocket expenses incurred by the Administrative Agent or any Lender, including the fees, charges and disbursements of any counsel for the Administrative Agent or any Lender, in connection with the enforcement or protection of its rights in connection with this Agreement and the other Transaction Documents, including its rights under this Section, or in connection with the Loans made hereunder, including in connection with any workout, restructuring or negotiations in respect thereof and (iii) and all costs, expenses, taxes, assessments and other charges incurred in connection with any filing, registration, recording or perfection of any security interest contemplated by the Security Agreement or any other document referred to therein.

To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent under any of the two preceding paragraphs of this Section, each Lender severally agrees to pay to the Administrative Agent such Lender’s pro rata share (determined in accordance with Section 3.6(d) with respect to the aggregate principal amount of the Loans as of the date of the request for such indemnification) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent Lender in its capacity as such.

Waiver; No Consequential Damages

8.2 No failure on the part of the Administrative Agent or any Lender to exercise and no delay in exercising, and no course of dealing with respect to, any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The remedies provided herein are cumulative and not exclusive of any remedies provided by law.

To the fullest extent permitted by applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any Support Document or any agreement or instrument contemplated hereby, the

 

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transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the Support Documents or the transactions contemplated hereby or thereby.

Notices

8.3 All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail (airmail, if overseas) or the equivalent (return receipt requested) or sent by facsimile transmission, as follows:

 

(a) if to the Borrower, to it at 601 Lexington Avenue, 26 th Floor, New York, NY 10022, Attention of Rocco Del Guercio (Telecopy No. 212-257-5198; Telephone No. 212-257-5193);

 

(b) if to the Administrative Agent, to it at 390 Greenwich Street, 4th Floor, New York, New York 10013, Attention: Mitali Sohoni (Telecopy No. 646-291-5779; Telephone No. 212-723-6181); and

 

(c) if to a Lender, to it at its address (or telecopy number) set forth in its Administrative Questionnaire.

Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto (or, in the case of any such change by a Lender, by notice to the Borrower and the Administrative Agent). All notices and other communications given to any party hereto shall be deemed to be effective (i) if in writing and delivered by hand or overnight courier service, on the date it is delivered; (ii) if sent by facsimile transmission, on the date that transmission is received by a responsible employee of the recipient in legible form (it being agreed that the burden of proving receipt will be on the sender and will not be met by a transmission report generated by the sender’s facsimile machine); or (iii) if sent by certified or registered mail (airmail, if overseas) or the equivalent (return receipt requested), on the date that mail is delivered or its delivery is attempted, unless the date of that delivery (or attempted delivery) or that receipt, as applicable, is not a Business Day or that communication is delivered (or attempted) or received, as applicable, after the close of business on a Business Day, in which case that communication shall be deemed given and effective on the first following day that is a Business Day.

Notices and other communications to the Lenders by the Administrative Agent hereunder may be delivered or furnished by electronic communication (including e mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such

 

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procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient.

Amendments; Successors and Assigns; Transfers; Replacement

 

8.4(a) Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders; provided that no such agreement shall (i) reduce the principal amount of the Loans or the rate of interest thereon without the written consent of each Lender affected thereby, (ii) postpone the Maturity Date or any other scheduled date of payment of the principal amount of the Loans or any interest thereon without the written consent of each Lender affected thereby, (iii) alter the manner in which payments or prepayments of principal, interest or other amounts hereunder shall be applied as among the Lenders without the written consent of each Lender, (iv) change any of the provisions of this Section or the definition of the term “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender, or (v) release any Collateral without the written consent of each Lender; and provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent without the prior written consent of the Administrative Agent.

 

(b) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer any of its rights or obligations hereunder except in accordance with this Section (and any attempted assignment or transfer by any Lender that is not in accordance with this Section shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto and their respective successors and assigns permitted hereby and any indemnitees referred to herein) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

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(c) Any Lender may assign to one or more assignees all or a portion of its rights and obligations under this Agreement), subject to the requirements that:

 

  (i) except in the case of an assignment to a Lender or an Affiliate of a Lender, the amount of any partial assignment by an assigning Lender shall not be less than USD5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;

 

  (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement;

 

  (iii) the assignee shall have certified to the Borrower that it is a “qualified purchaser” (within the meaning given to such term in Section 2(a)(51) of the Investment Company Act);

 

  (iv) the assignee, if it shall not already be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire;

 

  (v) the Borrower shall have consented to such assignment if the assignee is not already a Lender or an Affiliate of the Lender; and

 

  (vi) notwithstanding the foregoing, the Initial Lender shall not assign its commitment to make advances pursuant to Section 2.1.

 

(d) Subject to acceptance and recording thereof pursuant to paragraph (e) below, from and after the effective date specified in each Assignment and Acceptance the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto, but shall continue to be entitled to the rights referred to in Sections 3.8, 3.10 and 8.1). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (f) below.

 

(e)

The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices in New York City a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and respective principal amounts of the portions of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the Register ). The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the

 

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  Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice. Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the Administrative Agent shall accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph (e).

 

(f) Any Lender may, sell participations to one or more banks or other entities (a Participant ) in all or a portion of such Lender’s rights and obligations under this Agreement; provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to Section 8.4(a) that affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.8 and 3.10 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (c) above; provided, that no Participant shall be entitled to receive any greater amount pursuant to Section 3.8 than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 3.9 as though it were a Lender, provided such Participant agrees to be subject to Section 3.8 as though it were a Lender hereunder. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement (the Participant Register ); provided, however, that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Support Document) except to the extent that such disclosure is necessary to establish that such commitment, loan letter of credit or other obligation is in “registered form” under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.

 

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(g) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any such pledge or assignment to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such assignee for such Lender as a party hereto.

 

(h) Anything in this Section to the contrary notwithstanding, no Lender may assign or participate any interest in the portion of the Loans held by it hereunder to the Borrower or any of its Affiliates or Subsidiaries without the prior consent of each Lender.

 

(i) The Initial Lender hereby certifies (and agrees with) to the Borrower that the Initial Lender is a “qualified purchaser” (within the meaning given to such term in Section 2(a)(51) of the Investment Company Act).

 

(j) Each of the Administrative Agent and the Lenders agrees to be bound by the confidentiality provisions of the Debt Obligation Agreement with respect to all information and documentation in relation to the Debt Obligation or an Obligor thereon delivered hereunder to the Administrative Agent or such Lender, as the case may be. Each of the Administrative Agent and the Lenders acknowledges that such information may include material non-public information concerning an obligor on the Debt Obligation or its securities and agrees to use such information in accordance with applicable law, including Federal and State securities laws.

Governing Law; Submission to Jurisdiction; Etc.

 

8.5(a) This Agreement shall be construed in accordance with, and this Agreement and all matters arising out of this Agreement and the transactions contemplated hereby (whether in contract, tort or otherwise) shall be governed by, the law of the State of New York.

 

(b) With respect to any suit, action or proceedings relating to this Agreement ( Proceedings ), the Borrower irrevocably (i) submits to the non-exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City and (ii) waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings, that such court does not have any jurisdiction over the Borrower. Nothing in this Agreement precludes the Administrative Agent or any Lender from bringing Proceedings in any other jurisdiction, nor will the bringing of Proceedings by the Administrative Agent or any Lender in any one or more jurisdictions preclude the bringing of Proceedings by the Administrative Agent or any Lender in any other jurisdiction.

 

(c)

The Borrower irrevocably appoints CT Corporation (the Process Agent ) to receive, for it and on its behalf, service of process in any Proceedings. If for any reason the Process Agent is unable to

 

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  act as such, the Borrower will within 30 days appoint a substitute Process Agent located in the State of New York and give notice of such appointment to the Administrative Agent and each Lender. The Borrower irrevocably consents to service of process given in the manner provided for notices in Section 8.3. Nothing in this Agreement will affect the right of the Administrative Agent or any Lender to serve process in any other manner permitted by law.

 

(d) The Borrower irrevocably waives, to the fullest extent permitted by applicable law, with respect to itself and its revenues and assets (irrespective of their use or intended use), all immunity on the grounds of sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any court, (iii) relief by way of injunction, order for specific performance or for recovery of property, (iv) attachment of its assets (whether before or after judgment) and (v) execution or enforcement of any judgment to which it or its revenues or assets might otherwise be entitled in any Proceedings in the courts of any jurisdiction and irrevocably agrees, to the extent permitted by applicable law, that it will not claim any such immunity in any Proceedings.

Limited Recourse; Non-Petition

 

8.6(a) The obligations of the Borrower under this Agreement are limited recourse obligations of the Borrower payable solely from the Collateral and, following the enforcement and realization of the Collateral and the application thereof in accordance with this Agreement and the Security Agreement, any claims of the Administrative Agent and the Lenders shall be extinguished and shall not revive. None of the Borrower’s shareholders, officers, members and directors shall be liable for any of the obligations or agreements or breach thereof or any covenant, representation or warranty of the Borrower under this Agreement, and no recourse or action may be taken, directly or indirectly, with respect to any of the obligations or agreements or breach thereof or any covenant, representation or warranty of the Borrower under this Agreement against any of the Borrower’s shareholders, officers, members or directors, except that the foregoing will not (i) prevent recourse to the Collateral for the sums due or to become due under any security, instrument or agreement which is part of the Collateral, (ii) relieve any Person from (A) any liability for any unpaid consideration for stock, any unpaid capital contribution or any unpaid capital call or other similar obligation or (B) any obligation, agreement or liability under any agreement or instrument other than this Agreement or (iii) limit service of process on the Borrower by delivery of notice on its behalf to the Borrower.

 

(b) The provisions of this Section 8.6 shall survive any payment of this Agreement.

Waiver of Jury Trial

8.7 EACH OF THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS LOAN AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

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

 

CM FINANCE SPV LLC
By:  

 

  Name:
  Title:
CITIBANK, N.A., as Initial Lender
By:  

 

  Name:
  Title:
CITIBANK, N.A., as Administrative Agent
By:  

 

  Name:
  Title:

Signature Page to Loan Agreement


SCHEDULE I

CONDITIONS PRECEDENT

1. A fully executed original copy of the Security Agreement signed and delivered on behalf of the Borrower and the Security Agent.

2. A fully executed original copy of the Account Control Agreement signed and delivered on behalf of the Borrower, the Security Agent, Citibank, N.A., as intermediary, and Virtus, L.P., as collateral administrator.

3. A fully executed original copy of the Collateral Management Agreement signed and delivered on behalf of the Borrower and the Collateral Manager.

4. A certificate, signed by an officer of the Borrower’s managing member, certifying that no Event of Default or Potential Event of Default has occurred and that each of the representations and warranties of the Borrower set forth herein and in the Support Documents are true and correct.

5. A certificate, signed by the secretary of the Borrower’s managing member, as to due authorization, Borrower Formation Documents, incumbency and good standing.

6. Opinion of Morgan, Lewis & Bockius LLP in relation to the Borrower and the Collateral Manager.

7. Opinion of Morgan, Lewis & Bockius LLP in relation to the creation and perfection of security created under the Security Agreement and the Account Control Agreement.

8. UCC-1 financing statement naming the Borrower as debtor and the Security Agent as secured party and covering the collateral under the Security Agreement.

9. IRS Form W-9 with respect to the Borrower as a disregarded entity of the Investor.


SCHEDULE II

APPROVED BUYERS

Barclays Bank plc

BNP Paribas

Citibank, NA.

Credit Suisse

Deutsche Bank AG

Goldman Sachs & Co.

HSBC Bank

JPMorgan Chase Bank, National Association

Merrill Lynch, Pierce, Fenner & Smith Incorporated

Morgan Stanley & Co.

Oppenheimer & Co.

Royal Bank of Canada

Société Générale

TD Securities Inc.

The Bank of Montreal

The Bank of Nova Scotia

The Royal Bank of Scotland plc

The Toronto-Dominion Bank

UBS AG

Wells Fargo Bank, N.A.

Exhibit 10.3

COLLATERAL MANAGEMENT AGREEMENT

This Collateral Management Agreement (this “ Agreement ”) is made as of November 9, 2016, by and between CM Finance SPV LLC, a limited liability company formed under the laws of the State of Delaware (the “ Borrower ”), and CM Investment Partners, L.L.C. a Delaware limited liability company (the “ Collateral Manager ”).

RECITALS:

The Borrower intends to purchase one or more Term Loans and Bonds outstanding under the respective Debt Obligation Agreements referred to herein (the Term Loans and Bonds so acquired, collectively, the “ Debt Obligations ” and, together with the Eligible Investments, the “ Collateral ”).

The Borrower intends to borrow Loans pursuant to a Loan Agreement, dated as of the date hereof, among the Borrower, the financial institutions and other lenders from time to time party hereto as Lenders (the “ Lenders ”) and Citibank, N.A., a national banking association, as administrative agent for the Lenders (in such capacity, together with its successors in such capacity, the “ Administrative Agent ”) (as amended, supplemented or otherwise modified from time to time, the “ Loan Agreement ”).

The Borrower wishes to use the proceeds of Loans hereunder to finance a portion of the cost of purchasing the Debt Obligations.

The Borrower has requested that Citibank, N.A., as Initial Lender (the “ Initial Lender ”), make the Loans to the Borrower, and the Initial Lender is willing to make the Loans to the Borrower, all on the terms and conditions set forth in the Loan Agreement.

Capitalized terms used but not otherwise defined in this Agreement shall have the meanings given to them in the Loan Agreement;

Pursuant to the Security Agreement, the Borrower has pledged the Collateral to the Administrative Agent as security for the Loans;

The Borrower wishes to enter into this Agreement, pursuant to which the Collateral Manager agrees to perform, on behalf of the Borrower, certain duties with respect to the Collateral securing the Loans in the manner and on the terms set forth herein and to provide such additional services as are consistent with the terms of this Agreement and the Loan Agreement; and

The Collateral Manager has the capacity to provide the services required hereby and is prepared to perform such services upon the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual agreements herein set forth, the parties hereto agree as follows:

 

  1. Definitions

In the event of any conflict or inconsistency between any term defined herein and any term defined in the Loan Agreement, the defined term as set forth in the Loan Agreement shall govern.

 

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Change-in-Control ” means an event that will occur if any Person or “group” acquires any “beneficial ownership” (as such terms are defined under Rule 13d-3 of, and Regulation 13D under, the Securities Exchange Act of 1934, as amended), either directly or indirectly, of any equity interests or any interest convertible into any equity interests in the Collateral Manager having more than fifty percent (50%) of the voting power for the election of managers or directors of the Collateral Manager under ordinary circumstances.

Collateral Management Fee ” shall have the meaning set forth in Section 2(j).

 

  2. General Duties of the Collateral Manager

Subject to and in accordance with the terms of the Loan Agreement and this Agreement, the Collateral Manager shall provide services to the Borrower as follows:

(a) The Collateral Manager agrees to supervise and direct the investment and reinvestment of the Collateral, and shall perform on behalf of the Borrower the duties that have been expressly delegated to the Collateral Manager in this Agreement and in the Loan Agreement and Support Documents (and the Collateral Manager shall have no obligation to perform any other duties under the Loan Agreement or otherwise) and, to the extent necessary or appropriate to perform such duties, the Collateral Manager shall have the power to execute and deliver all necessary and appropriate documents and instruments on behalf of the Borrower with respect thereto.

(b) The Collateral Manager shall (i) select all the Debt Obligations satisfying all the applicable criteria set forth in the Loan Agreement and which shall be acquired by the Borrower and pledged to the Security Agent pursuant to the Security Agreement and (ii) facilitate the acquisition, disposition and settlement of the Debt Obligations by the Borrower in accordance with the Loan Agreement, the Security Agreement and the Account Control Agreement, including the delivery of Collateral in accordance with the Security Agreement.

(c) The Collateral Manager shall monitor the Collateral, on behalf of the Borrower, on an ongoing basis and shall use commercially reasonable efforts to provide to the Borrower all reports, schedules and other data which the Borrower are required to prepare, deliver or furnish under the Loan Agreement and the Support Documents, in the form and containing all information required thereby and on or before the date required under the Loan Agreement or the Support Documents, as applicable, and to deliver them to the parties entitled thereto under the Loan Agreement or the Support Documents, as applicable. The Collateral Manager shall, on behalf of the Borrower, be responsible for obtaining, to the extent practicable, any information concerning whether a Debt Obligation is a Bond, a Specified Debt Obligation, an Excess Concentration Debt Obligation or a Debt Obligation as to which a Debt Obligation Event, Debt Obligation Bankruptcy Event and/or a Debt Obligation Failure to Pay Event has occurred.

 

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(d) The Collateral Manager shall use commercially reasonable efforts to furnish officer’s certificates, certificates relating to the Borrowing Base, and notices in each case, as may be required under the Loan Agreement, including providing any certifications, and the Collateral Manager shall have the power to execute and deliver all necessary and appropriate documents and instruments on behalf of the Borrower with respect thereto.

(e) The Collateral Manager shall direct the Collateral Administrator to: (i) make payments on behalf of the Borrower under the Loan Agreement and the Support Documents, and (ii) deposit into the Interest Collection Account and the Principal Collection Account, as applicable, proceeds from the Debt Obligations, in each case, when required under the Loan Agreement.

(f) The Collateral Manager shall maintain and cause to be maintained all the documentation evidencing the Debt Obligations held in the Custodial Account (as defined in the Account Control Agreement) for the benefit of the Security Agent for the ratable benefit of the Secured Parties (as defined in the Security Agreement).

(g) The Collateral Manager may, in its sole discretion, subject to and in accordance with the provisions of the Loan Agreement, the Support Documents, and this Agreement and prior to the occurrence of an Event of Default, direct the Security Agent in writing to take the following actions with respect to any Debt Obligations (collectively, the “ Managed Assets ”), as applicable:

(i) retain such Managed Asset;

(ii) sell or otherwise dispose of such Managed Asset in the open market or otherwise;

(iii) acquire, as security for the Loans in substitution for or in addition to any one or more Managed Assets included in the Collateral, one or more additional Managed Assets;

(iv) if applicable, tender such Managed Asset if such Managed Asset is subject to a tender offer, voluntary redemption, exchange offer, conversion or other similar action (each, an “ Offer ”);

(v) if applicable, consent to any proposed amendment, modification or waiver pursuant to an Offer;

(vi) retain or dispose of any securities or other property (other than Cash) received pursuant to an Offer;

(vii) waive any default with respect to any defaulted Debt Obligation;

(viii) vote to accelerate the maturity of any defaulted Debt Obligation;

(ix) amend, waive, consent, or vote with respect to any Managed Asset;

 

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(x) exercise any other rights or remedies with respect to any Managed Asset and as provided in the related Debt Obligation Agreement including without limitation the negotiation of any workout or restructuring and the acceptance of any security or other consideration issued in a plan of reorganization, bankruptcy or other proceeding involving any thereof, or take any other action consistent with the terms of the Loan Agreement which it reasonably believes to be in the best interests of the Borrower; and

(xi) exercise any other rights or remedies with respect to such Managed Asset.

(h) Except as expressly otherwise permitted in Section 6(e) and by the Loan Agreement, the Collateral Manager shall cause any purchase or sale of any Managed Asset to be effected on an arm’s length basis.

(i) In connection with taking or omitting any action under the Loan Agreement or this Agreement, the Collateral Manager may consult with counsel and may rely in good faith on the advice of such counsel or any opinion of counsel selected in good faith with reasonable care.

(j) The Borrower shall pay to the Collateral Manager, for services rendered under this Agreement, the Collateral Management Fee in an amount equal to 0.15% per annum (calculated on the basis of a 360-day year consisting of twelve 30-day months) of the sum of aggregate outstanding amount of the Debt Obligations and Eligible Investments at the beginning of the Interest Period relating to such Payment Date, payable in arrears on each Payment Date, to the extent of funds available for such purpose in accordance with Section 3.7(i)(3) of the Loan Agreement except that no such amount shall be payable to the Collateral Manager if irrevocably waived by the Collateral Manager by written notice to the Borrower, the Collateral Administrator and the Administrative Agent.

The Collateral Manager is hereby granted, and shall have, full power to take all actions and execute and deliver all necessary and appropriate documents and instruments on behalf of the Borrower in accordance with this Agreement. The Collateral Manager hereby accepts and agrees to perform all of the duties delegated to it under this Agreement.

 

  3. No Joint Venture

Nothing in this Agreement shall be deemed to create a joint venture or partnership between the parties with respect to the arrangements set forth in this Agreement. For all purposes herein, the Collateral Manager shall be deemed to be an independent contractor and, unless otherwise provided herein or specifically authorized by the Borrower, from time to time, shall have no authority to act for or represent the Borrower.

 

  4. Brokerage

The Collateral Manager shall effect all purchases and sales of securities in a manner consistent with the principles of best execution, taking into account net price (including commissions) and execution capability and other services which the broker may provide. In this regard, the Collateral Manager may effect transactions which cause the Borrower to pay a commission in excess of a commission which another broker would have charged; provided,

 

4


however, that the Collateral Manager shall have first determined that such commission is reasonable in relation to the value of the brokerage, research, performance measurement service and other services performed by that broker.

 

  5. Expenses

The Collateral Manager shall be responsible for the ordinary expenses incurred in the performance of its obligations under this Agreement; provided , however , that any extraordinary expenses incurred by the Collateral Manager in the performance of such obligations, including, but not limited to: (i) any reasonable expenses incurred by it (whether for its own account or paid for or advanced by the Collateral Manager on behalf of the Borrower) to employ outside lawyers or consultants reasonably necessary in connection with the acquisition, holding, monitoring, marking to market, enforcement, amendment, default, evaluation, transfer, workout, restructuring, bankruptcy or disposition of any Debt Obligation, (ii) any reasonable expenses incurred by it in obtaining advice from counsel with respect to its obligations under this Agreement and the provisions of the Loan Agreement applicable to it, and (iii) any other commercially reasonable out-of-pocket fees and expenses incurred in connection with the acquisition, holding, monitoring, marking to market, enforcement, amendment, default, evaluation, transfer, workout, restructuring, bankruptcy or disposition of any Debt Obligation, including, without limitation, any and all rating agency expenses, news and quotation subscription expenses, travel costs and expenses incurred by the Collateral Manager or its officers (on a pro rata basis) in connection with the performance of the Collateral Manager’s obligations under this Agreement and of software and services costs for record keeping and fund administration, due diligence costs, legal, tax, accounting, appraisal, and any rating agency costs to the extent not paid directly by the Borrower and any extraordinary expenses of any nature or other unusual matters, shall be reimbursed by the Borrower to the extent funds credited to the Collection Account are available therefor in accordance with and subject to the limitations contained in the Loan Agreement. Other than as stated above, the Borrower will bear, and will pay directly in accordance with the Loan Agreement, all other costs and expenses incurred by it in connection with the organization, operation or liquidation of the Borrower.

Notwithstanding anything to the contrary in this Agreement, the Loan Agreement, or any Support Document, the Collateral Manager agrees for the benefit of the Lenders, the Administrative Agent, the Security Agent and the Collateral Administrator that any obligations of the Borrower to pay any amounts to the Collateral Manager under this Agreement (including, without limitation, this Section 5, Section 2(j) and Section 9 hereof) shall be subordinate and junior to the obligations of the Borrower to pay amounts to the Lenders, the Administrative Agent, the Security Agent and the Collateral Administrator when due under the Loan Agreement and the relevant Support Document(s) in accordance with Section 3.7 of the Loan Agreement, and all amounts due to the Lenders, the Administrative Agent, the Security Agent and the Collateral Administrator in accordance therewith shall be paid in full in cash or, to the extent the Lenders, the Administrative Agent, the Security Agent or the Collateral Administrator, as applicable, consents, other than in cash before any payment or distribution is made to the Collateral Manager. The Lenders, the Administrative Agent, the Security Agent and the Collateral Administrator shall constitute express third party beneficiaries of this Agreement for purposes of this Section 5.

 

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  6. Services to Other Companies or Accounts; Conflicts of Interest

(a) The members, Affiliates and associates of the Collateral Manager are in no way prohibited from, and intend to, spend substantial business time in connection with other businesses or activities, including, but not limited to, managing investments, advising or managing entities other than the Borrower, whose investment objectives are the same as or overlap with those of the Borrower, participating in actual or potential investments of the Borrower providing consulting, merger and acquisition, structuring or financial advisory services, including with respect to actual, contemplated or potential investments of the Borrower, or acting as a director, officer or creditors’ committee member of, adviser to, or participant in, any corporation, partnership, trust or other business entity. Such Affiliates or associates may, and expect to, receive fees or other compensation from third parties for any of these activities, which fees will be for the benefit of their own account and not the Borrower. These fees can relate to actual, contemplated or potential investments of the Borrower and may be payable by entities in which the Borrower directly or indirectly, has invested or contemplates investing.

(b) In addition, the members, Affiliates and associates of the Collateral Manager may manage Affiliates of the Borrower (including, but not limited to, other funds, investment vehicles, accounts or advisory clients of the Collateral Manager or any of its Affiliates, collectively the “ Other CM Funds ”)). The investment policies, fee arrangements and circumstances of the Borrower may differ from such Other CM Funds. For example, the Borrower may desire to retain an asset at the same time that one or more Other CM Funds desire to sell it. Similarly, the Other CM Funds which are in a liquidation phase may take priority as to sales of investments in which the Borrower is also an investor. These procedures could in certain circumstances adversely affect the price paid or received by the Borrower or the size of the position purchased or sold by the Borrower.

(c) Although the Borrower intends to operate so that the Debt Obligations are not “plan assets” under ERISA, some of the Other CM Funds may hold or will hold “plan assets” subject to ERISA. For those plan assets, certain members, Affiliates and/or associates of the Collateral Manager are classified as “fiduciaries” under ERISA. ERISA imposes certain general and specific responsibilities and restrictions on fiduciaries with respect to plan assets. As a result, the Collateral Manager may adopt certain procedures to address other conflicts in order to satisfy ERISA requirements, if applicable. The foregoing procedures could in certain circumstances affect adversely the price paid or received by the Borrower or the size of the position purchased or sold by the Borrower (including prohibiting the Borrower from purchasing a position) or may limit the rights that the Borrower may exercise with respect to an investment.

(d) Members, Affiliates and associates of the Collateral Manager may have the ability, under certain circumstances, to take certain actions that would be inconsistent with the objectives of the Borrower. In such circumstances, the Collateral Manager and its members, Affiliates and associates will act in good faith and in a manner believed by them to be equitable, provided that the Collateral Manager and its members, Affiliates and associates may adopt certain procedures to address other conflicts in order to satisfy ERISA requirements, if applicable. The foregoing procedures could in certain circumstances adversely affect the price

 

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paid or received by the Borrower or the size of the position purchased or sold by the Borrower (including prohibiting the Borrower from purchasing a position) or may limit the rights that the Borrower may exercise with respect to an investment.

(e) The Collateral Manager shall not direct the Borrower to purchase any Debt Obligation for inclusion in the Collateral directly from the Collateral Manager or any of its Affiliates as principal or any account or portfolio for which Collateral Manager or any of its Affiliates serve as investment advisor, or direct the Administrative Agent to sell directly any Debt Obligation to the Collateral Manager or any of its Affiliates as principal or any account or portfolio for which the Collateral Manager or any of its Affiliates serve as investment advisor, unless the Collateral Manager shall have certified to the Borrower and the Administrative Agent with respect to each such transaction that (i) such transaction will be consummated on terms prevailing in the market, (ii) the terms of such transaction are substantially as advantageous to the Borrower as the terms the Borrower would obtain in a comparable arm’s length transaction with a non-Affiliate, and (iii) such transaction complies with the Investment Advisers Act of 1940, as amended (the “ Advisers Act ”), to the extent applicable. In accordance with the foregoing, the Collateral Manager may, in one or more transactions, effect client cross-transactions where the Collateral Manager causes a transaction to be effected between the Borrower and another collateralized debt obligation vehicle, collateralized loan obligation vehicle, fund or another investment vehicle or account managed or advised by it or one or more of its Affiliates, but neither it nor the Affiliate will receive any commission or similar fee in connection with such cross-transaction. If consent of the Borrower to any such transaction is required under the Advisers Act, the Collateral Manager will obtain the prior written, informed consent of the Borrower. In addition, with the prior authorization of the Borrower, which may be revoked at any time, the Collateral Manager may enter into agency cross-transactions where it or any of its Affiliates acts as broker for the Borrower and for the other party to the transaction, to the extent permitted under applicable law.

(f) The Collateral Manager shall not direct the Borrower to purchase any Debt Obligation for inclusion in the Collateral if the obligor on such Debt Obligation is the Collateral Manager or any of its Affiliates or any other fund or account managed by the Collateral Manager or its Affiliates.

 

  7. Standard of Care

The Collateral Manager shall comply with all the terms and conditions of the Loan Agreement specifically made applicable to the Collateral Manager as specified therein affecting the duties and functions that have been delegated to it thereunder and hereunder and, subject to Section 8 of this Agreement, shall perform its obligations hereunder and thereunder in good faith and with reasonable care, using a degree of skill and attention no less than that which the Collateral Manager exercises with respect to assets comparable to the Debt Obligations, if any, that it manages for itself and exercises with respect to assets comparable to the Debt Obligations that it manages for others, and in a manner which the Collateral Manager reasonably believes to be consistent with practices and procedures followed by prudent institutional managers of national standing relating to assets of the nature and character of the Debt Obligations, except as expressly provided otherwise in this Agreement and/or the Loan Agreement. To the extent not inconsistent with the foregoing, the Collateral Manager shall follow its customary standards, policies and procedures in performing its duties under the Loan Agreement and hereunder.

 

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  8. Limitation of Liability

None of the Collateral Manager, its Affiliates, any officer, director, partner, member, employee, or stockholder of any of such Persons or any other Person that serves or provides advisory services and resources at the request of the Collateral Manager on behalf of the Borrower as an officer, director, partner, member, employee or agent of any other entity (each, an “ Indemnified Person ”) shall be liable to the Administrative Agent, any Lender or the Borrower for damages arising from any action taken or omitted to be taken by such Person or for damages arising from any action taken or omitted to be taken by the Administrative Agent, any Lender or other Person with respect to the Borrower; unless such damages are the result of gross negligence, willful misconduct or bad faith by such Indemnified Person. The Collateral Manager shall indemnify and hold harmless the Borrower and its Affiliates in the case of any damages resulting from the gross negligence or willful misconduct of the Collateral Manager, unless such actions or the damages result from the gross negligence, willful misconduct or bad faith of the Borrower or any of its Affiliates (other than the Collateral Manager).

 

  9. Indemnification

(a) To the fullest extent permitted by law, the Borrower shall indemnify, defend and hold harmless each Indemnified Person, against all losses, claims, damages or liabilities, whether or not matured or unmatured or whether or not asserted or brought due to contractual or other restrictions (including legal or other expenses reasonably incurred in investigating or defending against any such loss, claim, damage or liability), joint or several (collectively, “ Losses ”), to which an Indemnified Person may become subject by reason of any acts or omissions or any alleged acts or omissions arising out of such Indemnified Person’s or any other Indemnified Person’s activities in connection with the conduct of the business or affairs of the Borrower and/or a Debt Obligation (including in connection with this Agreement), or caused by or arising out of or in connection with, the incurrence of the Loans, unless such Loss results from the gross negligence or willful misconduct of such Person. Notwithstanding anything contained herein to the contrary, the obligations of the Borrower under this Section 9(a) are limited recourse obligations of the Borrower payable solely out of the amounts credited to the Collection Account in accordance with Section 3.7(i) of the Loan Agreement. Any indemnification rights provided for in this Section 9(a) shall be retained by any resigned or replaced Collateral Manager and by all former Indemnified Persons.

(b) Expenses incurred by an Indemnified Person in defense or settlement of any claim that may be subject to a right of indemnification hereunder may be advanced by the Borrower prior to the final disposition thereof upon receipt of a written undertaking by or on behalf of the Indemnified Person to repay such amount to the extent that it shall be determined ultimately that such Indemnified Person is not entitled to be indemnified hereunder. The right of any Indemnified Person to the indemnification provided herein shall be cumulative of, and in addition to, any and all rights to which such Indemnified Person may otherwise be entitled by contract or as a matter of law or equity and shall extend to such Indemnified Person’s successors, assigns and legal representatives.

 

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(c) The indemnification rights provided for in this Section 9 shall survive the termination of this Agreement. Notwithstanding anything else herein, nothing contained in this Section or elsewhere in this Agreement shall be construed as relieving any person for any liability (including liability under applicable U.S. federal securities laws which, under certain circumstances, impose liability even on persons that act in good faith), to the extent that such liability may not be waived under, or such indemnification would be in violation of, applicable law.

 

  10. Term of Agreement; Survival of Certain Terms

(a) This Agreement shall become effective on the date hereof. This Agreement shall continue in force until the first of the following occurs (i) the payment in full or redemption in whole of the Loans and the termination of the Loan Agreement in accordance with its terms; (ii) the liquidation of the Debt Obligations and the final distribution of proceeds of such liquidation to the Lenders; or (iii) termination of this Agreement in accordance with subsection (b) of this Section 10. Sections 8, 9 and 11 shall survive any termination of this Agreement.

(b) This Agreement may be terminated, and the Collateral Manager may be removed for cause, on the thirtieth day after the date on which the Administrative Agent, delivers written notice, setting forth the cause of such removal, to the Collateral Manager. For purposes of determining “Cause” with respect to termination of this Agreement pursuant to this Section 11, such term shall mean the occurrence of any one of the following events (each, a “ Collateral Manager Termination Event ”):

(i) the Collateral Manager willfully violates or willfully breaches any material provision of this Agreement, the Loan Agreement, or any Support Document to which it is a party (including, without limitation, any breach of a material representation, warranty or certification of the Collateral Manager hereunder or thereunder);

(ii) the Collateral Manager breaches any provision of this Agreement, the Loan Agreement, or any Support Document to which it is a party which violation or breach (1) has a Material Adverse Effect and (2) if capable of being cured, is not cured within 30 days of the Collateral Manager becoming aware of such violation or breach;

(iii) the Collateral Manager is wound up (or has any petition presented for its winding up, or an order is issued for its winding up, or has a resolution passed for its winding up) or dissolved or there is appointed over it or a substantial part of its assets a receiver, administrator, administrative receiver, trustee or similar officer; or the Collateral Manager (A) ceases to be able to, or admits in writing its inability to, pay its debts as they become due and payable, or makes a general assignment for the benefit of, or enters into any assignment, composition or arrangement with, its creditors generally; (B) applies for or consents (by admission of material allegations of a petition

 

9


or otherwise) to the appointment of a receiver, trustee, assignee, custodian, liquidator or sequestrator (or other similar official) of the Collateral Manager, or of any substantial part of its properties or assets, or authorizes such an application or consent, or Proceedings seeking such appointment are commenced without such authorization, consent or application against the Collateral Manager, and continue undismissed for 60 days; (C) authorizes or files a voluntary petition in bankruptcy or other similar law affecting creditors’ rights, or applies for or consents (by admission of material allegations of a petition or otherwise) to the application of any bankruptcy, reorganization, arrangement, readjustment of debt, insolvency or dissolution or similar law, or authorizes such application or consent, or proceedings to such end are instituted against the Collateral Manager, without such authorization, application or consent and are approved as properly instituted and remain undismissed for 60 days or result in adjudication of bankruptcy or insolvency or the issuance of an order for relief; (D) permits or suffers all or any substantial part of its properties or assets to be sequestered or attached by court order (or has a secured party take possession of all or substantially all of its assets, or has a distress, execution, attachment, sequestration or other legal process levied against it) and the order remains undismissed for 60 days; or (E) causes or is subject to any event with respect to which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in clauses (A) through (D) hereof;

(iv) the occurrence of any Event of Default under the Loan Agreement which default is primarily the result of any act or omission of the Collateral Manager resulting from a breach of its duties under this Agreement or the Loan Agreement (but not as a result of any default of any Debt Obligation);

(v) the occurrence of any act constituting fraud or criminal negligence in respect of investment activity by the Collateral Manager or any officer of the Collateral Manager who has direct responsibility for the investment activities of the Borrower;

(vi) the occurrence of a Change-in-Control without the prior written consent from the Administrative Agent; or

(vii) both of Michael C. Mauer and Christopher E. Jansen cease to be actively involved in and responsible for the management of the Collateral Manager.

If any of the events specified in this subclause (b) of this Section 10 shall occur, the Collateral Manager shall give prompt written notice thereof to the Borrower and the Administrative Agent upon the Collateral Manager’s becoming aware of the occurrence of such event.

 

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  11. Action Upon Termination

(a) Upon any termination of this Agreement, the Collateral Manager shall as soon as practicable:

(i) deliver to the Borrower, or to the successor collateral manager if so directed by the Borrower, all property and documents of the Administrative Agent or the Borrower or otherwise relating to the Debt Obligations then in the custody of the Collateral Manager (including, without limitation, all documents evidencing the Debt Obligations); and

(ii) deliver to the Administrative Agent an accounting with respect to the books and records delivered to the Administrative Agent or the successor collateral manager.

Notwithstanding such termination, the Collateral Manager shall remain liable to the extent set forth herein (but subject to Section 8 hereof) for its acts or omissions hereunder arising prior to termination, and for any expenses, losses, damages, liabilities, demands, charges and claims (including reasonable attorneys’ fees) in respect of or arising out of a breach of the representations and warranties made by the Collateral Manager in Section 12(c) hereof or from any failure of the Collateral Manager to comply with the provisions of this Section 11.

(b) The Collateral Manager agrees that, notwithstanding any termination, it shall reasonably cooperate in any Proceeding arising in connection with this Agreement, the Loan Agreement, or any of the Debt Obligations (excluding any such Proceeding in which claims are asserted against the Collateral Manager or any Affiliate of the Collateral Manager) upon receipt of appropriate indemnification and expense reimbursement satisfactory to the Collateral Manager.

(c) If any Loans remain outstanding, the Administrative Agent or the Borrower shall appoint a successor upon the termination of this Agreement. No termination of this Agreement or any removal or resignation of the Collateral Manager shall be effective until the date as of which (x) a successor collateral manager acceptable to the Administrative Agent shall have agreed in writing to assume all of the Collateral Manager’s duties and obligations pursuant to this Agreement, (y) such successor collateral manager has entered into a collateral management agreement that is either substantially in the form of this Agreement or otherwise in a form approved by the Administrative Agent, and (z) the appointment of such successor collateral manager is effective in accordance with the terms of such collateral management agreement. The Administrative Agent shall constitute an express third party beneficiary of this Agreement for purposes of this Section 11(c). Upon the acceptance by a successor collateral manager of such appointment, all rights and obligations of the Collateral Manager under this Agreement shall terminate, except as provided in Sections 5, 8, 9, 11 and 16.

 

  12. Representations and Warranties

(a) The Borrower hereby represents and warrants to the Collateral Manager as follows as of the date hereof:

(i) The Borrower is a limited liability company duly organized and validly existing and in good standing under the laws of the state of Delaware, has the full power and authority to own its assets and the Debt Obligations proposed to be owned by it and included in the Collateral and to transact the business in which it is presently engaged and is duly qualified under the laws of each jurisdiction where its ownership or

 

11


lease of property or the conduct of its business requires, or the performance of its obligations under this Agreement, the Loan Agreement, or the Support Documents would require, such qualification, except for failures to be so qualified, authorized or licensed that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Borrower.

(ii) The Borrower has the necessary power and authority to execute, deliver and perform this Agreement, the Loan Agreement, and the Support Documents to which it is a party and all obligations required hereunder and thereunder, and has taken all necessary action to authorize this Agreement, the Loan Agreement, and the Support Documents to which it is a party on the terms and conditions hereof and thereof, and the execution, delivery and performance of this Agreement, the Loan Agreement, and the Support Documents to which it is a party and the performance of all obligations imposed upon it hereunder and thereunder. No consent of any other Person including, without limitation, partners and creditors of the Borrower, and no license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental authority, other than those that may be required under state securities or “blue sky” laws and those that have been or shall be obtained in connection with the Loan Agreement is required by the Borrower in connection with this Agreement, the Loan Agreement or any Support Document to which it is a party or the execution, delivery, performance, validity or enforceability of this Agreement, the Loan Agreement or the Support Documents to which it is a party or the obligations imposed upon it hereunder or thereunder. This Agreement constitutes, and each of the Loan Agreement and the Support Documents to which it is a party, when executed and delivered hereunder by all parties hereto, shall constitute, the legally valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, as to enforcement, to (A) the effect of bankruptcy, insolvency, or similar laws affecting generally the enforcement of creditors’ rights, as such laws would apply in the event of any bankruptcy, receivership, insolvency or similar event applicable to the Borrower and (B) general equitable principles (whether enforceability of such principles is considered in a proceeding at law or in equity).

(iii) The execution, delivery and performance of this Agreement, the Loan Agreement, and the Support Documents to which it is a party do not violate any provision of any existing law or regulation binding on the Borrower, or any order, judgment, award or decree of any court, arbitrator or governmental authority binding on the Borrower, or its constitutive documents of, or any securities issued by, the Borrower or of any mortgage, indenture, lease, contract or other agreement, instrument or undertaking to which the Borrower is a party or by which the Borrower or

 

12


any of its assets may be bound, the violation of which would have a material adverse effect on the business, operations, assets or financial condition of the Borrower, and do not result in or require the creation or imposition of any lien on any of its property, assets or revenues pursuant to the provisions of any such mortgage, indenture, lease, contract or other agreement, instrument or undertaking (other than the lien of the Security Agreement).

(iv) The Borrower is not required to register as an “investment company” under the Investment Company Act.

(v) The Borrower is not in violation of its constitutive documents or in breach or violation of or in default under the Loan Agreement or any other contract or agreement to which it is a party or by which it or any of its assets may be bound, or any applicable statute or any rule, regulation or order of any court, government agency or body having jurisdiction over the Borrower or its properties, the breach or violation of which or default under which would have a material adverse effect on the validity or enforceability of this Agreement or the performance by the Borrower of its duties hereunder.

(vi) True and complete copies of the Loan Agreement and the Support Documents and the Borrower’s constitutive documents have been delivered to the Collateral Manager.

(vii) The Borrower represents and warrants that it is not a person (A) subject to an order of the Securities and Exchange Commission issued under Section 203(f) of the Advisers Act; (B) convicted within the previous ten years of any felony or misdemeanor involving conduct described in Sections 203(e)(2)(A)-(D) or 203(e)(3) of the Advisers Act; (C) who has been found by the Securities and Exchange Commission to have engaged, or has been convicted of engaging, in any of the conduct specified in paragraphs (1), (5) or (6) of Section 203(e) of the Advisers Act; or (D) is subject to an order, judgment or decree described in Section 203(e)(4) of the Advisers Act.

The Borrower agrees to deliver a true and complete copy of each amendment to the documents referred to in paragraph (a)(vi) above to the Collateral Manager as promptly as practicable after its adoption or execution.

The Borrower agrees to conduct its activities hereunder and under the Loan Agreement in compliance with all applicable laws and regulations of the jurisdictions in which the activities contemplated hereunder will occur (including, without limitation, campaign finance laws and laws respecting gifts or other contributions to political figures or to officials from or associated with governmental agencies affiliated with investors). The Borrower further acknowledges that notwithstanding anything herein to the contrary, it shall not receive any fee hereunder with respect to any investor to the extent the payment of such fee violates any applicable law or regulation, which violation cannot be cured.

 

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(b) The Collateral Manager hereby represents and warrants (and, with respect to clause (vi), covenants) to the Borrower as follows as of the date hereof:

(i) The Collateral Manager is a limited liability company duly organized and validly existing and in good standing under the laws of the State of Delaware and has full power and authority to own its assets and to transact the business in which it is currently engaged and is duly qualified and in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires, or the performance of this Agreement would require such qualification, except for those jurisdictions in which the failure to be so qualified, authorized or licensed would not have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager or on the ability of the Collateral Manager to perform its obligations under, or a Material Adverse Effect.

(ii) The Collateral Manager has full power and authority to execute, deliver and perform this Agreement and all obligations required hereunder and under the provisions of the Loan Agreement applicable to the Collateral Manager, and has taken all necessary action to authorize this Agreement on the terms and conditions hereof and the execution, delivery and performance of this Agreement and all obligations required hereunder and under the terms of the Loan Agreement applicable to the Collateral Manager. No consent of any other Person, including, without limitation, any partners or creditors of the Collateral Manager, and no license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental authority is required by the Collateral Manager in connection with this Agreement, or the execution, delivery, performance, validity or enforceability of this Agreement or the obligations required hereunder, or under the terms of the Loan Agreement applicable to the Collateral Manager. This Agreement has been, and each instrument and document required hereunder or under the terms of the Loan Agreement shall be, executed and delivered by a duly authorized officer of the Collateral Manager, and this Agreement constitutes, and each instrument and document required hereunder or under the terms of the Loan Agreement when executed and delivered by the Collateral Manager hereunder or under the terms of the Loan Agreement shall constitute, the valid and legally binding obligations of the Collateral Manager enforceable against the Collateral Manager in accordance with their terms, subject to (A) the effect of bankruptcy, insolvency or similar laws affecting generally the enforcement of creditors’ rights and (B) general equitable principles.

 

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(iii) The execution, delivery and performance of this Agreement and the performance by the Collateral Manager of the terms of the Loan Agreement applicable to it will not violate any provision of any existing law or regulation binding the Collateral Manager, or any order, judgment, award or decree of any court, arbitrator or governmental authority binding on the Collateral Manager, or the organizational documents of, or any securities issued by, the Collateral Manager or constitute, with or without giving notice or lapse of time or both, a default under or result in a breach of any of the terms or provisions of any mortgage, indenture, lease, contract or other agreement, instrument or undertaking to which the Collateral Manager is a party or by which the Collateral Manager or any of its assets may be bound, the violation of which would have a material adverse effect on the ability of the Collateral Manager to perform its obligations under or a Material Adverse Effect, and will not result in or require the creation or imposition of any lien on any of its property, assets or revenues pursuant to the provisions of any such mortgage, indenture, lease, contract or other agreement, instrument or undertaking.

(iv) There is no charge, investigation, action, suit or proceeding before or by any court pending or, to the best knowledge of the Collateral Manager, threatened that, if determined adversely to the Collateral Manager, would have a material adverse effect upon the performance by the Collateral Manager of its duties under, or a Material Adverse Effect.

(v) The Collateral Manager is not in violation of its constitutive documents or in breach or violation of or in default under any contract or agreement to which it is a party or by which it or any of its property may be bound, or any applicable statute or any rule, regulation or order of any court, government agency or body having jurisdiction over the Collateral Manager or its properties, the breach or violation of which or default under which would have a Material Adverse Effect on the validity or enforceability of this Agreement or the provisions of the Loan Agreement applicable to the Collateral Manager, or the performance by the Collateral Manager of its duties hereunder or thereunder.

(vi) The Collateral Manager shall not cause the Borrower to engage in any activities other than entering into and performing its obligations under, or as contemplated by, this Agreement, the Loan Agreement and the Support Documents.

The Collateral Manager’s representations and warranties in Sections 11(b)(iii) are given on the assumptions that there shall be no misrepresentations or breach of covenants by the Lenders and do not address the consequences of such misrepresentations or breach, and that none of the assets of the Borrower are or will be (or are or will be deemed for purposes of ERISA or Section 4975 of the Code, or any substantially similar applicable federal, state, local or non-US law, to be) “plan assets” subject to ERISA or Section 4975 of the Code (or any substantially similar law).

 

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  13. Amendment

This Agreement may not be modified or amended without the prior written consent of the Administrative Agent and in writing executed by the parties hereto. Failure on the part of either party to insist upon strict compliance by the other with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition.

 

  14. Assignment

This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors. Any assignment of the Collateral Manager’s obligations or transfer of the Collateral Manager’s rights under this Agreement as determined by reference to the Advisers Act, shall require the consent of the Borrower and the Administrative Agent. The Administrative Agent shall constitute an express third party beneficiary of this Agreement for purposes of this Section 14.

The Collateral Manager hereby acknowledges that, pursuant to Section 2 of the Security Agreement, the Borrower is assigning all of its right, title and interest in, to and under this Agreement to the Security Agent as the security agent of the Lenders and the Collateral Manager agrees that all of the representations, covenants and agreements made by the Collateral Manager in this Agreement are also for the benefit of the Security Agent.

 

  15. Entire Agreement; Unenforceability; Counterparts

This instrument contains the entire agreement between the parties relating to the subject matter hereof. The invalidity or unenforceability of any provision hereof, or of the application of any provision hereof to any circumstances, shall in no way affect the validity or enforceability of any other provision, or the application of such provision to any other circumstances. Descriptive headings are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement. This Agreement (and each amendment, modification and waiver in respect of this Agreement) may be executed and delivered in counterparts (including by facsimile transmission or e-mail), each of which will be deemed an original, and all of which together constitute one and the same instrument. Delivery of an executed counterpart signature page of this Agreement by e-mail (PDF) shall be effective as delivery of a manually executed counterpart of this Agreement.

 

  16. Non-Petition; Limited Recourse

(a) The Collateral Manager agrees not to cause the filing of a petition in bankruptcy or to institute any reorganization, arrangement, insolvency, moratorium or liquidation proceedings against the Borrower for the nonpayment of the fees or other amounts payable by the Borrower to the Collateral Manager under this Agreement until the payment in full of all Loans issued under the Loan Agreement and the expiration of a period equal to one year and a day, or, if longer, the applicable preference period and one day, following such payment. Nothing in this Section 16 shall preclude, or be deemed to stop, the Collateral Manager from taking any action prior to the expiration of the aforementioned period in (A) any case or proceeding voluntarily filed or commenced by the Borrower or (B) any involuntary insolvency proceeding filed or commenced by a Person other than the Collateral Manager.

 

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(b) Notwithstanding any other provision of this Agreement, all of the obligations of the Borrower under this Agreement, the Loan Agreement, and the Support Documents are limited recourse obligations payable solely from Collateral granted to the Security Agent pursuant to the Security Agreement. No recourse shall be had for the payment of any amount owing in respect of this Agreement against any other asset of the Borrower or against any officer, director, employee, partner, member, shareholder or incorporator of the Borrower. The obligations of the Borrower under this Agreement are limited recourse obligations of the Borrower payable solely from amounts credited to the Collection Account pursuant to Section 3.7(i) of the Loan Agreement, and following the reduction thereof to zero and realization of all other Collateral and application of such proceeds in accordance with the Loan Agreement, all obligations and all claims against the Borrower hereunder or arising in connection herewith shall be extinguished and shall not thereafter revive. This Section 16(b) shall survive the termination of this Agreement.

 

  17. Notices

Any request, demand, authorization, direction, instruction, order, notice, consent, waiver or other documents provided or permitted by this Agreement to be made upon, given, delivered, e-mailed or furnished to, or filed with:

(a) the Borrower shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first class postage prepaid, hand delivered, sent by overnight courier service or by facsimile in legible form, to the Borrower addressed to it at c/o CM Finance Inc., 601 Lexington Avenue, 26th Floor, New York, New York, 10022, Attention: Rocco Del Guercio or at any other address previously furnished in writing to the other parties hereto by the Borrower, as the case may be, with a copy to the Collateral Manager at its address below;

(b) the Collateral Manager shall be sufficient for every purpose hereunder if in writing and mailed, first class postage prepaid, hand delivered, sent by overnight courier service or by facsimile in legible form, to the Collateral Manager addressed to it at 601 Lexington Avenue, 26th Floor, New York, New York, 10022, Attention: Rocco Del Guercio, Email: mm@CMFN-INC.com or at any other address previously furnished in writing to the parties hereto.

 

  18. Governing Law

This Agreement shall be construed in accordance with, and this Agreement and any matters arising out of or relating in any way whatsoever to this Agreement (whether in contract, tort or otherwise), shall be governed by, the law of the State of New York.

 

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  19. Third Party Beneficiaries

Nothing in this Agreement, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any benefit or any legal or equitable right, remedy or claim under this Agreement except, with respect to the Administrative Agent, as otherwise expressly provided in this Agreement.

 

  20. Written Disclosure Statement.

The Borrower shall provide, if reasonably available to it, and the Borrower shall use its reasonable efforts to cause each of the Lenders and the Administrative Agent to provide, to the Collateral Manager all information reasonably requested by the Collateral Manager in connection with regulatory matters, including without limitation any information that is necessary or advisable in order for the Collateral Manager (or its parent or Affiliates) to complete its Form ADV, Form PF, any other form required by the Securities and Exchange Commission, or to comply with any requirement of the Dodd-Frank Wall Street Reform and Consumer Protection Act, as amended from time to time, and any other laws or regulations applicable to the Collateral Manager from time to time. The Borrower acknowledges receipt of Part II of the Collateral Manager’s Form ADV more than 48 hours prior to the date of execution of this Agreement.

 

  21. Waiver of Jury Trial

EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

[ remainder of page intentionally left blank; signature page follows ]

 

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IN WITNESS WHEREOF , we have set our hands as of the day and year first written above.

 

CM FINANCE SPV LTD.
By:  

 

  Name:
  Title:

Signature Page - Collateral Management Agreement


CM INVESTMENT PARTNERS, L.L.C.
By:  

 

Name:  
Title:  

Signature Page - Collateral Management Agreement

Exhibit 10.4

ACCOUNT CONTROL AGREEMENT

ACCOUNT CONTROL AGREEMENT , dated as of November 9, 2016 (this Agreement ), between CM Finance SPV LLC, a limited liability company formed under the laws of the State of Delaware (the Debtor ), Citibank, N.A., a national banking association acting through its Agency & Trust Division, in its capacity as security agent for and on behalf of the Secured Parties (in such capacity, together with its successors in such capacity, the Security Agent ) under the Security Agreement referred to below, Citibank, N.A., in its capacity as securities intermediary (the Intermediary ), and Virtus Group, LP, a Texas limited partnership, in its capacity as collateral administrator (the Collateral Administrator , together with the Intermediary, the Collateral Parties ).

The parties hereby agree as follows:

 

1. Interpretation

 

1.1 Definitions and Interpretation

Capitalized terms used but not defined herein have the respective meanings given to such terms in the Security Agreement dated as of the date hereof (the Security Agreement ) between the Debtor and the Security Agent or, if not defined therein, in the Loan Agreement referred to therein. The principles of construction and rules of interpretation set forth in Section 1.2 of the Loan Agreement shall apply, mutatis mutandis, to this Agreement, with each reference to “this Agreement” in said Section 1.2 being a reference to this Agreement. In addition, the terms defined in Section 11 will have the meanings therein specified for the purpose of this Agreement.

 

2. The Accounts

 

2.1 Status of Account and Relationship of Parties

The Intermediary represents and agrees that: (a) it has established and is maintaining on its books and records account number 11693400, designated the “Custodial Account” (said account, together with any replacement thereof or substitution therefor, the Custodial Account ) to which all of the Debt Obligations and certain other items of property that are the subject of this Agreement shall be credited, (b) it has established and is maintaining on its books and records account number 11693500, designated the “Principal Collection Account” (said account, together with any replacement thereof or substitution therefor, the Principal Collection Account ), (c) it has established and is maintaining on its books and records account number 11693600, designated the “Interest Collection Account” (said account, together with any replacement thereof or substitution therefor, the Interest Collection Account , and, together with the Principal Collection Account, the Collection Accounts ) to which Cash shall be credited by the Intermediary, (d) each of the Accounts is a Securities Account in respect of which (i) the Intermediary is a Securities Intermediary and (ii) the Security Agent is the Entitlement Holder, and (e) all property delivered to the Intermediary pursuant to the Security Agreement will be promptly credited to one of the Accounts. Each Collection Account may include any sub-accounts thereof established by the Intermediary for administrative purposes. Any reference to “Principal Collection Account” shall, unless otherwise expressly provided, include a reference to


any sub-account of the Principal Collection Account. Any reference to “Interest Collection Account” shall, unless otherwise expressly provided, include a reference to any sub-account of the Interest Collection Account.

 

2.2 Treatment of Property as Financial Assets

The Intermediary hereby agrees that (a) each item of property (whether cash, a security, an instrument or any other property whatsoever) standing to the credit of an Account shall be treated as a Financial Asset and (b) the Intermediary will treat the Security Agent, as Entitlement Holder, as entitled to exercise the rights that comprise each Financial Asset credited to an Account, all in accordance with this Agreement and Sections 8-502 through 8-509 of the UCC.

 

2.3 Form of Securities, Instruments, etc.

All securities and other Financial Assets standing to the credit of an Account other than cash that are in registered form or that are payable to or to order shall be (a) registered in the name of, or payable to or to the order of, the Intermediary, (b) indorsed to or to the order of the Intermediary or in blank or (c) credited to another securities account maintained in the name of the Intermediary; and in no case will any Financial Asset standing to the credit of an Account be registered in the name of, or payable to or to the order of, the Debtor or indorsed to or to the order of the Debtor, except to the extent the foregoing have been specially indorsed to or to the order of the Intermediary or in blank.

 

2.4 Securities Intermediary’s Jurisdiction

The Intermediary agrees that its Securities Intermediary’s Jurisdiction with respect to each Account is the State of New York.

 

2.5 Conflicts with other Agreements

The parties hereto agree that, if there is any conflict between this Agreement and any other agreement relating to the Accounts, the provisions of this Agreement shall control.

 

2.6 Control

Each of the parties hereto hereby agrees and acknowledges that any deposit of any amount into, and any withdrawal from, either Collection Account shall, at all times, be made in accordance with and be subject to, Section 3.7 of the Loan Agreement.

Each Collateral Party agrees that it will comply with Entitlement Orders originated by the Security Agent, as Entitlement Holder, with respect to the Accounts and the Financial Assets credited thereto without further consent by the Debtor.

In addition, unless the Intermediary receives written notice from an Authorized Representative (as defined below) of the Security Agent (acting solely at the direction of the Administrative Agent) that an Event of Default has occurred (in which event the Collateral Parties shall act solely at the direction of the Security Agent and all withdrawals from either Collection Account shall only be made in accordance with, and in the priority set out in, Section 3.7(g) of the Loan Agreement), the Collateral Parties shall follow the instructions of the Debtor given to the Collateral Administrator and the Intermediary with respect to the Accounts and the Financial

 

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Assets credited thereto but only if (i) the Collateral Administrator gives notice of such instructions of the Debtor to the Administrative Agent (which the Collateral Administrator shall give within one Business Day after receipt thereof) and (ii) the Administrative Agent does not give notice to the Collateral Administrator on or prior to the close of business in New York two Business Days after receiving notice of such instructions from the Collateral Administrator that such instructions of the Debtor are inconsistent with the Security Agreement (including as to the permitted application of funds contemplated by Section 6.2 of the Security Agreement) or the Loan Agreement; provided that neither Collateral Party shall be obligated to following such instructions of the Debtor prior to the end of the two Business Day period during which the Administrative Agent may give the notice under the foregoing clause (ii).

 

3. The Collateral Parties

 

3.1 No Change to Accounts; Certain Information

 

  (a) Without 30 days’ prior notice to the Security Agent, the Intermediary will not change the account number or designation of either Account.

 

  (b) The Collateral Administrator or the Intermediary shall promptly notify the Security Agent if any person asserts or seeks to assert a Lien, encumbrance or adverse claim against any portion or all of the property credited to either Account. The Collateral Administrator or the Intermediary will send copies of all statements and confirmations for the Accounts simultaneously to the Debtor and the Security Agent.

 

3.2 Subordination

The Intermediary hereby subordinates to the security interest of the Security Agent in the Accounts, in all property standing to the credit of the Accounts and in all Security Entitlements with respect to such property, any and all statutory, regulatory, contractual or other rights now or hereafter existing in favor of the Intermediary over or with respect to the Accounts, all property standing to the credit of the Accounts and all Security Entitlements to such property (including (a) any and all contractual rights of set-off, Lien or compensation, (b) any and all statutory or regulatory rights of pledge, Lien, set-off or compensation, (c) any and all statutory, regulatory, contractual or other rights to put on hold, block transfers from or fail to honor instructions of the Security Agent with respect to the Accounts or (d) any and all statutory or other rights to prohibit or otherwise limit the pledge, assignment, collateral assignment or granting of any type of security interest in the Accounts).

 

3.3 Limitation on Liability

 

  (a)

Neither Collateral Party shall have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, neither Collateral Party shall be subject to any fiduciary or other implied duties, and neither Collateral Party shall have any duty to take any discretionary action or exercise any discretionary powers. None of the Intermediary, the Collateral Administrator, any Affiliate of the Intermediary or the Collateral Administrator, or any officer, agent, stockholder, partner, member, director or employee of the Intermediary or the Collateral Administrator shall have any liability, whether direct or indirect and whether in contract, tort or otherwise, (i) for any

 

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  action taken or omitted to be taken by any of them hereunder or in connection herewith unless (A) such party willfully fails to follow written directions delivered to the Collateral Parties in accordance with this Agreement or (B) there has been a final judicial determination that such act or omission was performed or omitted in bad faith or constituted gross negligence or willful misconduct, (ii) for any action taken or omitted to be taken by such party at the express direction of the Debtor and the Security Agent (acting solely at the direction of the Administrative Agent), or (iii) for any action taken or omitted to be taken by such party at the express written direction of any Person reasonably believed by it to be entitled to give such direction in accordance with this Agreement, the Loan Agreement or any other Support Document. In addition, the Intermediary shall have no liability for making any investment or reinvestment of any cash balance in the Accounts pursuant to an investment instruction complying with the terms of this Agreement. With the exception of this Agreement and the Security Agreement (and the provisions of the Loan Agreement referred to therein), the Collateral Parties are not responsible for or chargeable with knowledge of any terms or conditions contained in any agreement referred to herein.

 

  (b) Neither the Intermediary nor the Collateral Administrator shall be required to take any action that is contrary to applicable law or this Agreement or that will require it to expend or risk its own funds or otherwise incur financial liability.

 

  (c) To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. When an account is opened, the Intermediary will ask for information that will allow the Intermediary to identify relevant parties.

 

  (d) Should any controversy arise between the undersigned with respect to this Agreement or with respect to the right to receive the Financial Assets, the Collateral Parties shall have the right to consult with counsel and/or to institute a bill of interpleader in any court of competent jurisdiction to determine the rights of the parties. If the Collateral Parties receive written evidence that a dispute has arisen with respect to the Financial Assets, the Collateral Parties may deliver the Financial Assets to any court of competent jurisdiction and request such court to adjudicate the entitlement to such Financial Assets by interpleader or other legal proceeding. In respect of this paragraph, should such actions be necessary, or should the Collateral Parties become involved in litigation in any manner whatsoever on account of this Agreement or the Financial Assets, the Debtor hereby binds and obligates itself, its successors, assigns and legal representatives to pay the Collateral Parties, in addition to any charge made hereunder for acting as the Intermediary or the Collateral Administrator, as applicable, reasonable attorney’s fees incurred by it, and any other disbursements, expenses, losses, costs and damages in connection with and resulting from such actions.

 

  (e)

Each order, instruction or direction of the Debtor or the Security Agent shall be executed by an individual designated as an authorized representative of the Debtor or the Security Agent, as the case may be (an Authorized Representative ). Each Authorized Representative is authorized to give and receive notices, requests and instructions and

 

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  deliver certificates and documents in connection with this Agreement on behalf of the Debtor or the Security Agent, as the case may be, and the specimen signature for each such Authorized Representative of the Debtor or the Security Agent initially authorized hereunder, is set forth on Exhibit A. From time to time, the Debtor and the Security Agent may deliver to each party hereto a revised exhibit or a specimen signature, but each of the parties hereto shall be entitled to rely conclusively on the then current exhibit until receipt of a superseding exhibit.

 

  (f) Neither Collateral Party shall be liable for any error of judgment made in good faith by any of its officers, unless it shall be proven that such Collateral Party was grossly negligent in ascertaining the pertinent facts.

 

  (g) The Collateral Parties shall have no duty to determine or inquire into the happening or occurrence of any event or contingency except as expressly required herein. Neither Collateral Party shall be liable for any action taken or omitted by it, except for its gross negligence or willful misconduct, in good faith and reasonably believed by it to be authorized hereby, or for any action taken or omitted by it in accordance with the written advice of its counsel. In case any bona fide question arises as to its duties hereunder, each Collateral Party may request instructions from the Security Agent and shall, upon making such request, be entitled at all times to refrain from taking any action unless it has received written instructions from an Authorized Representative of the Security Agent. If either Collateral Party does not receive such instructions within five Business Days after its request, such Collateral Party may, but shall be under no duty to, take or refrain from taking a course of action. Each of the Collateral Parties shall act in accordance with instructions received after such five Business Day period except to the extent that it has already taken, or committed itself to take, action inconsistent with such instructions or acting in accordance with such instructions shall expose such Collateral Party to additional costs, obligations or liabilities, in each case, that are not contemplated in this Agreement or any other Support Document. Nothing herein shall require either Collateral Party to expend or risk its own funds, or take any action which may, in its judgment, subject it to risk of liability for which it is not adequately indemnified. Neither Collateral Party shall be responsible for the title, validity, value, marketability or collectability or genuineness of any Financial Asset received by or delivered to it pursuant to this Agreement. The Collateral Parties may exercise or carry out their duties under this Agreement either directly or indirectly through agents or attorneys, and shall not be responsible for any act or omissions on the part of any such agent or attorney appointed with due care. The Collateral Parties and any such agent may perform any and all its duties and exercise its rights and powers through their respective Affiliates. The exculpatory provisions of this Section 3 shall apply to any such agent and to the Affiliates of the Collateral Parties and any such agent, and shall apply to their respective activities as Collateral Parties.

 

  (h)

The Intermediary shall, in accordance with Sections 3.7(a) and 3.7(b) of the Loan Agreement, invest collected funds standing to the credit of an Account in Eligible Investments (as defined below) on any Business Day on which the Collateral Parties have received written instructions from an Authorized Representative of the Debtor prior to 11:00 a.m. New York time (such instructions being referred to herein as Proper

 

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  Instructions ). All Eligible Investments shall be held in the name of the Security Agent for the benefit of the Secured Parties. In accordance with any Proper Instructions, the Intermediary shall make such Eligible Investments of the type selected in the Proper Instructions, subject to the availability of the Eligible Investments selected, with the cash amount on deposit in the Accounts as of 11:00 a.m. New York time on such day. If the Intermediary does not receive such Proper Instructions prior to 11:00 a.m. New York time, funds on deposit in the Accounts shall remain uninvested. Funds on deposit in the Accounts shall initially be uninvested. Eligible Investments has the meaning given to such term in the Loan Agreement. An Eligible Investment may be made by the Intermediary with or through the Security Agent or any of its Affiliates.

 

3.4 Reliance

The Collateral Parties shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing delivered to either Collateral Party under or in connection with this Agreement or the Security Agreement and believed by it to be genuine and to have been signed or sent by the proper Person. The Collateral Parties may consult with counsel, financial advisers or accountants which are employed by a law firm, financial services firm or accounting firm, as applicable, that is either nationally-recognized and/or a firm which such Intermediary customarily consults and which has expertise in the subject matter with respect to which such Intermediary seeks its advice; and the advice of any such financial advisers or accountants and any opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice.

 

3.5 Collateral Administrator

The Collateral Administrator shall perform the following functions:

 

  (a) maintain a loan tracking system with respect to all of the Debt Obligations deposited into the Custodial Account, and enter information (including without limitation principal balance, current interest, stated maturity and amortization payments) regarding the Debt Obligations held in the Custodial Account into the Collateral Administrator’s loan tracking system (such information in such system, the Collateral Database );

 

  (b) make adjustments on a daily basis to the loan tracking system to account for principal received on all of the Debt Obligations held in the Principal Collection Account and for interest payments received on all of the Debt Obligations held in the Interest Collection Account, and to account for purchases or sales of any Debt Obligation (or any portion thereof) held in the Custodial Account;

 

  (c) prepare and deliver to the Debtor and to the Security Agent a position statement with respect to all of the Debt Obligations held in the Custodial Account on a weekly basis, or more frequently if requested by the Debtor;

 

  (d) receive and deliver on a daily basis to the Debtor and the Security Agent any notices or other communications received from any obligor in respect of all of the Debt Obligation held in the Custodial Account;

 

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  (e) prepare a draft report in respect of each Payment Date indicating the amounts set forth in Sections 3.7(e)(i), 3.7(e)(ii), 3.7(e)(iii) or 3.7(g), as applicable, on such date as required under Section 5.1(a)(x) of the Loan Agreement, to the extent that it has received the information therefor from the applicable parties;

 

  (f) provide notices of the Debtor’s instructions in respect of any deposit of any amount into, or any withdrawal from, either Collection Account to the Security Agent; and

 

  (g) such other functions as may be agreed upon in writing by the parties hereto from time to time.

 

4. Indemnity; Limitation on Damages; Expenses; Fees

 

4.1 Indemnity

 

  (a) The Debtor hereby indemnifies and holds harmless the Intermediary, the Collateral Administrator, their respective Affiliates and their respective officers, directors, employees, representatives and agents (collectively the Intermediary Indemnitees ), against any loss, claim, damage, expense or liability, joint or several, or any action in respect thereof, to which the Intermediary Indemnitees may become subject, whether commenced or threatened, insofar as such loss, claim, damage, expense, liability or action arises out of or is based upon the execution, delivery or performance of this Agreement, but excluding any such loss, claim, damage, expense, liability or action arising out of the bad faith, gross negligence or willful misconduct of the Intermediary, and shall reimburse the Intermediary Indemnitees promptly upon demand for any legal or other expenses reasonably incurred by the Intermediary Indemnitees in connection with investigating or preparing to defend or defending against or appearing as a third party witness in connection with any such loss, claim, damage, expense, liability or action as such expenses are incurred.

 

  (b) The Debtor hereby indemnifies and holds harmless the Collateral Administrator, its Affiliates and their respective officers, directors, employees, representatives and agents (collectively the Administrator Indemnitees ), against any loss, claim, damage, expense or liability, joint or several, or any action in respect thereof, to which the Administrator Indemnitees may become subject, whether commenced or threatened, insofar as such loss, claim, damage, expense, liability or action arises out of or is based upon the following of instructions given by the Debtor (all such losses, claims, damages, expenses, liabilities or actions, the Debtor Related Losses ), but excluding any such loss, claim, damage, expense, liability or action arising out of the bad faith, gross negligence or willful misconduct of the Collateral Administrator, and shall reimburse the Administrator Indemnitees promptly upon demand for any legal or other expenses reasonably incurred by the Administrator Indemnitees in connection with investigating or preparing to defend or defending against or appearing as a third party witness in connection with any such loss, claim, damage, expense, liability or action as such expenses are incurred.

 

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4.2 Limitation on Damages

No claim may be made by the Debtor against either Collateral Party or the Security Agent or any officer, agent, stockholder, partner, member, director or employee of any of them for any special, indirect, consequential or punitive damages in respect of any claim for breach of contract or any other theory of liability arising out of or relating to this Agreement or the transactions contemplated hereby or any act, omission or event occurring in connection therewith, and the Debtor hereby waives, releases and agrees not to sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.

 

4.3 Expenses and Fees

 

  (a) The Debtor shall be responsible for, and hereby agrees to pay, all reasonable costs and expenses incurred by the Collateral Parties and the Security Agent in connection with the establishment and maintenance of the Accounts, including the Collateral Parties’ customary fees and expenses, any costs or expenses incurred by the Collateral Parties as a result of conflicting claims or notices involving the parties hereto, including the fees and expenses of its external legal counsel, and all other costs and expenses incurred in connection with the execution, administration or enforcement of this Agreement, including reasonable attorneys’ fees and costs, whether or not such enforcement includes the filing of a lawsuit. All such costs and expenses shall constitute expenses and may be paid to the Collateral Parties from the Accounts. The authorization herein granted to the Collateral Parties to pay such costs and expenses shall be irrevocable and no further authorization or instruction shall be required.

 

  (b) [Reserved].

 

  (c) Notwithstanding any provision of this Agreement to the contrary, the Security Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.

 

5. Representations

The Intermediary and the Collateral Administrator each represents to the Security Agent (for and on behalf of the Secured Parties) with respect to itself only that:

 

5.1 Status

It is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation and, if relevant under such laws, in good standing.

 

5.2 Powers

It has the power to execute this Agreement and any other documentation relating to this Agreement to which it is a party, to deliver this Agreement and any other documentation relating to this Agreement that it is required by this Agreement to deliver and to perform its obligations under this Agreement and has taken all necessary action to authorize such execution, delivery and performance; and this Agreement has been, and each other such document will be, duly executed and delivered by it.

 

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5.3 No Violation or Conflict

Such execution, delivery and performance do not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets.

 

5.4 Consents

All governmental and other consents that are required to have been obtained by it with respect to this Agreement have been obtained and are in full force and effect and all conditions of any such consents have been complied with.

 

5.5 Obligations Binding

This Agreement constitutes its legal, valid and binding obligation, enforceable in accordance with its terms (subject to applicable bankruptcy, receivership, conservatorship, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law)).

 

6. Transfer

Neither this Agreement nor any interest or obligation in or under this Agreement may be transferred (whether by way of security or otherwise) by any party without the prior written consent of each other party, except that:

 

  (a) a party may make such a transfer of this Agreement pursuant to a consolidation or amalgamation with, or merger with or into, or transfer of all or substantially all its assets to, another Person (but without prejudice to any other right or remedy under any other agreement); and

 

  (b) the Security Agent may transfer all of its interests and obligations in and under this Agreement to a successor Security Agent under the Security Agreement; provided that the Collateral Parties shall have no obligation to comply with any notice, request, certificate, consent, statement, instrument, document or other writing delivered by such successor until the Collateral Parties receive such evidence thereof as the Collateral Parties may reasonably require.

Any purported transfer that is not in compliance with this Section will be void.

 

7. Termination

 

  (a) Except as provided herein, this Agreement shall remain in full force and effect until all Secured Obligations have been paid or satisfied in full. Upon the joint written instruction of the Security Agent (acting at the direction of the Administrative Agent) and the Debtor, the Intermediary shall close the Accounts and disburse to the Debtor the balance of any assets therein, and the security interest in the Accounts shall be terminated.

 

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  (b) Either Collateral Party may resign by giving 30 days’ prior notice to the Security Agent and the Debtor, provided that any such resignation shall be effective only upon the appointment by the Security Agent of successor Collateral Parties (or Collateral Party, as the case may be) (which appointment the Security Agent agrees to effect promptly following the receipt of such notice). If no successor shall have been so appointed and have accepted appointment within 60 days after the giving of such notice of resignation, the resigning Collateral Party may petition any court of competent jurisdiction for the appointment of a successor. On or prior to the effectiveness of such resignation, the Intermediary shall deliver to its successor each Financial Asset standing to the credit of the Accounts.

 

8. Miscellaneous

 

8.1 Entire Agreement

This Agreement constitutes the entire agreement and understanding of the parties with respect to its subject matter and supersedes all oral communication and prior writings with respect thereto.

 

8.2 Amendments

No amendment, modification or waiver in respect of this Agreement will be effective unless in writing (including a writing evidenced by a facsimile transmission) and executed by each of the parties.

 

8.3 Survival

All representations and warranties made in this Agreement or in any certificate or other document delivered pursuant to or in connection with this Agreement shall survive the execution and delivery of this Agreement or such certificate or other document (as the case may be) or any deemed repetition of any such representation or warranty. In addition, the rights of the Collateral Parties under Sections 3 and 4, and the obligations of the Debtor under Section 4, shall survive the termination of this Agreement.

 

8.4 Benefit of Agreement

Subject to Section 6, this Agreement shall be binding upon and inure to the benefit of the Debtor, the Security Agent (for and on behalf of the Secured Parties), the Intermediary and the Collateral Administrator and their respective successors and permitted assigns.

 

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8.5 Counterparts

This Agreement (and each amendment, modification and waiver in respect of it) may be executed and delivered in counterparts (including by facsimile transmission), each of which will be deemed an original.

 

8.6 No Waiver of Rights

A failure or delay in exercising any right, power or privilege in respect of this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or further exercise of that right, power or privilege or the exercise of any other right, power or privilege.

 

8.7 Headings

The headings used in this Agreement are for convenience of reference only and are not to affect the construction of or to be taken into consideration in interpreting this Agreement.

 

8.8 Severability

If any provision of this Agreement, or the application thereof to any party or any circumstance, is held to be unenforceable, invalid or illegal (in whole or in part) for any reason (in any jurisdiction), the remaining terms of this Agreement, modified by the deletion of the unenforceable, invalid or illegal portion (in any relevant jurisdiction), will continue in full force and effect, and such unenforceability, invalidity, or illegality will not otherwise affect the enforceability, validity or legality of the remaining terms of this Agreement so long as this Agreement as so modified continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the deletion of such portion of this Agreement will not substantially impair the respective expectations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties.

 

9. Notices

 

9.1 Effectiveness

All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail (airmail, if overseas) or the equivalent (return receipt requested) or sent by email transmission (of a pdf or similar format file), as follows:

 

  (a) if to the Debtor, to it at 601 Lexington Avenue, 26 th Floor, New York, NY 10022, Attention: Rocco Del Guercio; Telephone No. 212-257-5193; Email: RDelGuercio@CMFN-INC.COM;

 

  (b) if to the Security Agent, to it at 388 Greenwich Street, 14th Floor, New York, New York 10013, Attention: Agency & Trust; Email: thomas.varcado@citi.com; Telephone No. 713-693-6674;

 

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  (c) if to the Intermediary, to it at 388 Greenwich Street, 14th Floor, New York, New York 10013, Attention: Agency & Trust; Email: thomas.varcados@citi.com; Telephone No. 713-693-6674); and

 

  (d) if to the Collateral Administrator, to it at 1301 Fannin Street, 17th Floor, Houston, TX 77002, Re: CM Finance SPV LLC; Email: paul.plank@virtusllc.com; (Telephone No. 713-993-4304).

Either party hereto may change its address for notices and other communications hereunder by notice to the other party hereto.

The Security Agent and the Intermediary agree to accept and act upon instructions or directions pursuant to this Agreement or any documents executed in connection herewith sent by unsecured email or other similar unsecured electronic methods; provided that any person providing such instructions or directions (if such person is not listed in Exhibit A (Authorized Representatives of Security Agent) hereto) shall provide to the Security Agent and the Intermediary an incumbency certificate listing persons designated to provide such instructions or directions (including the email addresses of such persons), which incumbency certificate shall be amended whenever a person is added or deleted from the listing. If such person elects to give the Security Agent and the Intermediary email (of .pdf or similar files) (or instructions by a similar electronic method) and the Security Agent and the Intermediary in its discretion elects to act upon such instructions, their reasonable understanding of such instructions shall be deemed controlling. The Security Agent and the Intermediary shall not, in the absence of any bad faith, gross negligence or willful misconduct on the part of the Security Agent or the Intermediary, as the case may be, be liable for any losses, costs or expenses arising directly or indirectly from their reliance upon and compliance with such instructions notwithstanding such instructions conflicting with or being inconsistent with a subsequent written instruction. Any person providing such instructions or directions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Security Agent and the Intermediary, including without limitation the risk of the Security Agent and the Intermediary acting on unauthorized instructions, and the risk of interception and misuse by third parties.

Any notices or other communications delivered to the Intermediary shall be delivered with a copy to the Collateral Administrator.

Notwithstanding anything to the contrary herein, any and all communications (both text and attachments) by or from the Intermediary that the Intermediary in its sole discretion deems to contain confidential, proprietary, and/or sensitive information and sent by electronic mail will be encrypted. The recipient of the email communication will be required to complete a one-time registration process.

 

9.2 Change of Addresses

Any party may by notice to each other party change the address or facsimile number at which notices or other communications are to be given to it.

 

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10. Governing Law and Jurisdiction

 

10.1 Governing Law

This Agreement shall be construed in accordance with, and this Agreement and all matters arising out of or relating in any way whatsoever to this Agreement (whether in contract, tort or otherwise) shall be governed by, the law of the State of New York.

 

10.2 Jurisdiction

With respect to any suit, action or proceedings relating to this Agreement or any matter between the parties arising under or in connection with this Agreement ( Proceedings ), each party irrevocably: (a) submits to the non-exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City; and (b) waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings, that such court does not have any jurisdiction over such party. Nothing in this Agreement precludes either party from bringing Proceedings in any other jurisdiction, nor will the bringing of Proceedings in any one or more jurisdictions preclude the bringing of Proceedings in any other jurisdiction.

 

10.3 Service of Process

The Debtor irrevocably appoints the Process Agent (if any) specified pursuant to the Loan Agreement to receive, for it and on its behalf, service of process in any Proceedings. If for any reason the Debtor’s Process Agent is unable to act as such, the Debtor will promptly notify the Security Agent and within 30 days appoint a substitute process agent acceptable to the Security Agent. The parties irrevocably consent to service of process given in the manner provided for notices in Section 9. Nothing in this Agreement will affect the right of any party to serve process in any other manner permitted by law.

 

10.4 Waiver of Jury Trial Right

EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING. Each party hereby (a) certifies that no representative, agent or attorney of the other has represented, expressly or otherwise, that the other would not, in the event of a Proceeding, seek to enforce the foregoing waiver and (b) acknowledges that it has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this paragraph.

 

11. Definitions

As used in this Agreement:

Accounts means the Collection Accounts and the Custodial Account.

Administrator Indemnitees has the meaning given to such term in Section 4.1(b).

Agreement has the meaning specified in the first paragraph of this Agreement.

Authorized Representative has the meaning given to such term in Section 3.3(e).

 

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Collateral Administrator has the meaning specified in the first paragraph of this Agreement.

Collateral Parties has the meaning specified in the first paragraph of this Agreement.

Collection Accounts has the meaning given to such term in Section 2.1.

consent includes a consent, approval, action, authorization, exemption, notice, filing, registration or exchange control consent.

Custodial Account has the meaning given to such term in Section 2.1.

Debtor has the meaning specified in the first paragraph of this Agreement.

Debtor Related Losses has the meaning given to such term in Section 4.1(b).

Eligible Investments has the meaning given to such term in Section 3.3(h).

Entitlement Holder has the meaning given to such term in Section 8-102(a)(7) of the UCC.

Entitlement Order has the meaning given to such term in Section 8-102(a)(8) of the UCC.

Financial Asset has the meaning given to such term in Section 8-102(a)(9) of the UCC.

Interest Collection Account has the meaning specified in Section 2.1.

Intermediary has the meaning specified in the first paragraph of this Agreement.

Intermediary Indemnitees has the meaning given to such term in Section 4.1(a).

Loan Agreement means the Loan Agreement dated on or about the date hereof between, among others, the Debtor, the Lenders (as defined therein), and Citibank, N.A., a national banking association, as administrative agent for the Lenders (as defined therein).

Principal Collection Account has the meaning specified in Section 2.1.

Proceedings has the meaning specified in Section 10.2.

Proper Instructions has the meaning given to such term in Section 3.3(h).

Securities Account has the meaning given to such term in Section 8-501(a) of the UCC.

Security Agent has the meaning specified in the first paragraph of this Agreement.

Security Agreement has the meaning given to such term in Section 1.1

Securities Intermediary has the meaning given to such term in Section 8-102(a)(14) of the UCC.

Securities Intermediary’s Jurisdiction has the meaning given to such term in Section 8-110(e) of the UCC.

Security Entitlement has the meaning given to such term in Section 8-102(a)(17) of the UCC.

UCC means the Uniform Commercial Code as in effect in the State of New York.

 

14


IN WITNESS WHEREOF the parties have executed this document on the respective dates specified below with effect from the date specified on the first page of this document.

 

CM FINANCE SPV LLC
By:  

 

  Name:
  Title:


VIRTUS GROUP, LP , not in its individual capacity but solely as Collateral Administrator

 

By:  

 

  Name:
  Title:


CITIBANK, N.A. , not in its individual capacity but solely as Intermediary

 

By:  

 

  Name:
  Title:


CITIBANK, N.A. , not in its individual capacity but solely as Security Agent

 

By:  

 

  Name:
  Title:


Exhibit A

AUTHORIZED REPRESENTATIVES OF DEBTOR

 

Name

 

Position

 

Signature

                                                                                                                                    
                                                                                                                                 
                                                                                                                                 
                                                                                                                                 


Exhibit A

AUTHORIZED REPRESENTATIVES OF SECURITY AGENT

 

Name

 

Position

 

Signature

                                                                                                                                    
                                                                                                                                  
                                                                                                                                 
                                                                                                                                 


CONTENTS

 

SECTION    PAGE  

1.

    

INTERPRETATION

     1   
 

1.1

   D EFINITIONS AND I NTERPRETATION      1   

2.

    

THE ACCOUNTS

     1   
 

2.1

   S TATUS OF A CCOUNT AND R ELATIONSHIP OF P ARTIES      1   
 

2.2

   T REATMENT OF P ROPERTY AS F INANCIAL A SSETS      2   
 

2.3

   F ORM OF S ECURITIES , I NSTRUMENTS , ETC .      2   
 

2.4

   S ECURITIES I NTERMEDIARY S J URISDICTION      2   
 

2.5

   C ONFLICTS WITH OTHER A GREEMENTS      2   
 

2.6

   C ONTROL      2   

3.

    

THE COLLATERAL PARTIES

     3   
 

3.1

   N O C HANGE TO A CCOUNTS ; C ERTAIN I NFORMATION      3   
 

3.2

   S UBORDINATION      3   
 

3.3

   L IMITATION ON L IABILITY      3   
 

3.4

   R ELIANCE      6   
 

3.5

   C OLLATERAL A DMINISTRATOR      6   

4.

    

INDEMNITY; LIMITATION ON DAMAGES; EXPENSES; FEES

     7   
 

4.1

   I NDEMNITY      7   
 

4.2

   L IMITATION ON D AMAGES      8   
 

4.3

   E XPENSES AND F EES      8   

5.

    

REPRESENTATIONS

     8   
 

5.1

   S TATUS      8   
 

5.2

   P OWERS      8   
 

5.3

   N O V IOLATION OR C ONFLICT      9   
 

5.4

   C ONSENTS      9   
 

5.5

   O BLIGATIONS B INDING      9   

6.

    

TRANSFER

     9   

7.

    

TERMINATION

     9   

 

Page i


8.

    

MISCELLANEOUS

     10   
 

8.1

   E NTIRE A GREEMENT      10   
 

8.2

   A MENDMENTS      10   
 

8.3

   S URVIVAL      10   
 

8.4

   B ENEFIT OF A GREEMENT      10   
 

8.5

   C OUNTERPARTS      11   
 

8.6

   N O W AIVER OF R IGHTS      11   
 

8.7

   H EADINGS      11   
 

8.8

   S EVERABILITY      11   

9.

    

NOTICES

     11   
 

9.1

   E FFECTIVENESS      11   
 

9.2

   C HANGE OF A DDRESSES      12   

10.

    

GOVERNING LAW AND JURISDICTION

     13   
 

10.1

   G OVERNING L AW      13   
 

10.2

   J URISDICTION      13   
 

10.3

   S ERVICE OF P ROCESS      13   
 

10.4

   W AIVER OF J URY T RIAL R IGHT      13   

11.

    

DEFINITIONS

     13   

 

Page ii


Dated as of November 9, 2016

CM FINANCE SPV LLC,

as Debtor

CITIBANK, N.A.,

as Security Agent

CITIBANK, N.A.,

as Intermediary

VIRTUS GROUP, LP,

as Collateral Administrator

 

 

 

ACCOUNT CONTROL AGREEMENT

 

 

 

 

LOGO    Freshfields Bruckhaus Deringer US LLP

Exhibit 10.5

SECURITY AGREEMENT dated as of November 9, 2016 (this Agreement ) between CM Finance SPV LLC, a limited liability company formed under the laws of the State of Delaware (the Pledgor ), and Citibank, N.A., a national banking association acting through its Agency & Trust Division, as security agent for the Secured Parties referred to below (in such capacity, the Security Agent ).

WHEREAS:

A. The Pledgor, the financial institutions and other lenders from time to time party thereto as “Lenders” (the Lenders ) and Citibank, N.A., a national banking association, as administrative agent for the Lenders (in such capacity, together with its successors in such capacity, the Administrative Agent ), have entered into a Loan Agreement dated as of November 9, 2016 (the Loan Agreement ).

B. To induce the Lenders to enter into the Loan Agreement and extend credit thereunder, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Pledgor has agreed to pledge and grant to the Security Agent for the ratable benefit of the Secured Parties a security interest in the Collateral (as hereinafter defined) as security for the Pledgor’s present and future obligations under the Loan Agreement and the Support Documents (collectively, the Secured Obligations ). Accordingly, the parties hereto agree as follows:

 

1. Definitions and Interpretation

Capitalized terms used but not defined herein have the respective meanings given to such terms in the Loan Agreement. Terms used but not defined herein or in the Loan Agreement, if defined in the UCC, shall have the respective meanings given to such terms in the UCC. The principles of construction and rules of interpretation set forth in Section 1.2 of the Loan Agreement shall apply, mutatis mutandis , to this Agreement, with each reference to “this Agreement” in said Section 1.2 being a reference to this Agreement. In addition, as used herein, the following terms have the following respective meanings:

Accounts has the meaning specified in the Account Control Agreement.

Account Control Agreement means the Account Control Agreement dated as of the date hereof between the between the Pledgor, the Security Agent, Citibank, N.A., in its capacity as securities intermediary, and Virtus Group, LP, a Texas limited partnership, in its capacity as collateral administrator.

Administrative Agent has the meaning assigned to such term in the recitals hereto.

Agreement has the meaning specified in the first paragraph of this Agreement.

Assigned Agreements has the meaning specified in Section 2.1(c).

Authorized Officer means any officer of the Pledgor who is authorized to act for the Pledgor in matters relating to, and binding upon, the Pledgor, which, for the avoidance of doubt, shall include any duly appointed attorney-in-fact.

Cash means Money and any collected funds standing to the credit of any of the Accounts.

 

Page 1


Certificated Securities has the meaning specified in Section 8-102(a)(4) of the UCC.

Collateral has the meaning specified in Section 2.

Collections means (a) all Interest Proceeds, (b) all Principal Proceeds and (c) any other amounts or other proceeds received with respect to the Collateral, including all distributions with respect thereto and any proceeds of collateral for, or any other supporting obligations in respect of, such Collateral or the relevant obligor’s obligation to make payments with respect thereto.

Credit Documents means the Loan Agreement and the Support Documents.

Custodial Account means the account, referenced as such, established pursuant to Section 6.2(a) and the Account Control Agreement.

Financial Asset has the meaning specified in Section 8-102(a)(9) of the UCC.

Instrument has the meaning specified in Section 9-102(a)(47) of the UCC.

Interest Collection Account has the meaning specified in the Account Control Agreement.

Lenders has the meaning assigned to such term in the recitals hereto.

Loan Agreement has the meaning assigned to such term in the recitals hereto.

Money has the meaning specified in Section 1-201(24) of the UCC.

Pledgor has the meaning specified in the first paragraph of this Agreement.

Pledgor Order means a written order or request dated and signed in the name of the Pledgor by an Authorized Officer of the Pledgor.

Principal Collection Account has the meaning specified in the Account Control Agreement.

Proceedings has the meaning specified in Section 8.7.

Secured Obligations has the meaning assigned to such term in the recitals hereto.

Secured Parties means the Loan Parties, the Security Agent Custodian and Citibank, N.A., in its capacity as securities intermediary under the Account Control Agreement.

Security Agent has the meaning specified in the first paragraph of this Agreement.

Security Agent Custodian has the meaning specified in Section 6.3(c).

UCC means the Uniform Commercial Code as in effect from time to time in the State of New York.

 

Page 2


2. Grant of Security Interest

As collateral security for the prompt payment in full and performance when due (whether at stated maturity, by acceleration, by liquidation or otherwise) of the Secured Obligations, the Pledgor hereby pledges to the Security Agent, for the ratable benefit of the Secured Parties, and grants to the Security Agent, for the ratable benefit of the Secured Parties, a valid first-priority continuing security interest in, lien on, and right of set-off against, all of its right, title and interest in, to and under all accounts, payment intangibles, general intangibles, chattel paper, electronic chattel paper, instruments, deposit accounts, letter-of-credit rights, securities, investment property and any and all other property of any type or nature owned by it, wherever located, and whether now owned or hereafter acquired and whether now existing or hereafter coming into existence (collectively, Collateral ), including:

 

  (a) the Accounts;

 

  (b) all Debt Obligations, all Assignment Agreements and all of the Pledgor’s rights and remedies thereunder;

 

  (c) the Collateral Management Agreement and the Account Control Agreement, in each case, as each such agreement may be amended, amended and restated, supplemented or otherwise modified from time to time (each, an Assigned Agreement and collectively, the Assigned Agreements ), including (i) all rights of the Pledgor to receive amounts due and to become due under or pursuant to the Assigned Agreements, (ii) all rights of the Pledgor to receive proceeds of any insurance, indemnity, warranty or guaranty with respect to the Assigned Agreements, (iii) claims of the Pledgor for damages arising out of or for breach of or default under the Assigned Agreements, and (iv) the right of the Pledgor to terminate the Assigned Agreements, to perform thereunder and to compel performance and otherwise exercise all remedies thereunder; and

 

  (d) all Collections and other proceeds with respect to any of the foregoing.

 

3. Representations and Warranties

On each Representation Date, the Pledgor represents and warrants to the Secured Parties that:

 

3.1 Ownership of Collateral

Immediately before and immediately after giving effect to each transfer of Collateral by the Pledgor to the Security Agent for the benefit of the Secured Parties in accordance herewith, the Pledgor will have good and marketable title to such Collateral, the Pledgor will be the sole legal and beneficial owner of such Collateral, and the Pledgor will have the right to receive all Collections on such Collateral, in each case free and clear of all Liens other than the pledge, security interest, lien and right of set-off granted pursuant hereto. No effective financing statement or other instrument similar in effect covering all or any part of such Collateral or listing the Pledgor or any trade name of the Pledgor as debtor is on file in any recording office, except such as may have been filed in favor of the Security Agent for the benefit of the Secured Parties.

 

Page 3


3.2 Security Interest

The Pledgor has full right to grant the pledge, security interest, lien and right of set-off in its rights in the Collateral to the Security Agent. Upon each transfer of Collateral by the Pledgor in the manner specified in Section 6.4, and after the other actions described in Section 6.2(a) and Section 6.4 have been taken by the appropriate parties, the Security Agent will have a perfected pledge of and security interest in such Collateral and all proceeds thereof (subject to Section 9-315 of the UCC), which security interest will be prior to all other interests in such Collateral (in the case of proceeds, subject to Section 9-315 of the UCC). No filings (other than any financing statement contemplated by Section 4.3) or any other action (other than the execution and delivery of the Account Control Agreement) will be necessary to perfect such security interest in the Collateral.

 

3.3 Organization; Location

The Pledgor is a limited liability company formed under the laws of the State of Delaware, and the name of the Pledgor on the signature pages hereof is the name of the Pledgor indicated on the public record of the jurisdiction of incorporation, formation or organization of the Pledgor. All security certificates and instruments representing or evidencing investment property of the Pledgor (other than investment property credited to any securities account) have been delivered to the Security Agent. None of the Collateral is evidenced by a promissory note or other instrument that has not been delivered to the Security Agent.

 

3.4 Assigned Agreements

The Assigned Agreements, true and complete copies (which may be in the form of electronic copies) of which have been furnished to the Security Agent, have been duly authorized, executed and delivered by all parties thereto, have not been amended, amended and restated, supplemented or otherwise modified from the copies thereof most recently delivered to the Security Agent prior to the date hereof, are, as far as the Pledgor is aware and in full force and effect and are binding upon and enforceable against all parties thereto in accordance with their terms. There exists no default or termination event under any Assigned Agreement with respect to the Pledgor (or to the knowledge of the Pledgor) or any other party thereto.

 

4. Covenants

The Pledgor agrees that, until the payment, performance and satisfaction in full of the Secured Obligations and the expiration or termination of all obligations of the Pledgor under the Loan Agreement (other than contingent obligations for which no claim has been made):

 

4.1 Title Covenants

At no time shall the Pledgor create, permit or suffer to exist any Lien or security interest in the Collateral other than the pledge, security interest, lien and right of set-off granted pursuant hereto.

 

4.2 Security Agent May Perform

If (i) the Pledgor fails to perform any obligation to be performed by it contained herein after the Security Agent (acting solely at the direction of the Administrative Agent) has made a written request for the Pledgor to so perform such obligation or (ii) an Event of Default has occurred and

 

Page 4


is continuing, the Security Agent (acting solely at the direction of the Administrative Agent) may itself give, make, execute, deliver, file and/or record any financing statement, notice, instrument, document, agreement or other papers, and take such acts, as the Security Agent may reasonably determine to be necessary or desirable from time to time to create and perfect, and establish, preserve or otherwise protect the priority of, the pledge, security interest, lien and right of set-off of the Security Agent in the Collateral and otherwise perform, or cause performance of, any other such actions as the Administrative Agent shall determine is necessary or desirable in connection with such failure to perform, and the reasonable expenses of the Security Agent incurred in connection therewith shall be payable by the Pledgor and shall be part of the Secured Obligations.

 

4.3 Perfection, Etc.

The Pledgor shall:

 

  (a) give, make, execute, deliver, file and/or record any financing statement, notice, instrument, document, agreement or other papers and take any other actions, including, without limitation, fulfilling its obligations under the Account Control Agreement, that may be necessary or desirable (in the reasonable judgment of the Security Agent) to create and perfect, and establish, preserve or otherwise protect the priority of, the pledge, security interest, lien and right of set-off granted by it pursuant to Section 2 or to enable the Security Agent to exercise and enforce its rights hereunder with respect to such pledge, security interest, lien and right of set-off;

 

  (b) keep full and accurate books and records relating to the Collateral;

 

  (c) permit representatives of the Administrative Agent, upon reasonable notice, at any time during normal business hours, to inspect and make abstracts from its books and records pertaining to the Collateral and forward copies of all notices or other written communications received by it with respect to the Collateral to the Administrative Agent, all in such manner as the Administrative Agent may reasonably require; and

 

  (d) direct each obligor in respect of any Collateral to make any payments due or to become due in respect of such Collateral directly to the relevant subaccount of the Interest Collection Account or the Principal Collection Account, as applicable.

 

4.4 No Other Financing Statements

The Pledgor shall not file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to the Collateral in which the Security Agent (or its nominee) is not named as the sole secured party.

 

4.5 Prior Parties; Care of Collateral

The Security Agent shall not be required to take steps necessary to preserve any rights against prior parties with respect to any of the Collateral.

 

Page 5


4.6 Continuing Liability of the Pledgor

Anything herein to the contrary notwithstanding, the Pledgor shall remain liable under each interest and obligation included in the Collateral to observe and perform all the conditions and obligations to be observed and performed by it thereunder, all in accordance with and pursuant to the terms and provisions thereof, and shall do nothing to impair the security interest of the Security Agent for the benefit of the Secured Parties in any Collateral (it being agreed that any actions expressly permitted by the Loan Agreement shall not be deemed to impair such security interest). The Security Agent shall not have any obligation or liability under any such interest or obligation by reason of or arising out of this Agreement or the receipt by the Security Agent of any payment relating to any such interest or obligation pursuant hereto, and the Security Agent shall not be required or obligated in any manner to perform or fulfill any of the obligations of the Pledgor thereunder or pursuant thereto or to make any payment or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any such interest or obligation or to present or file any claim or to take any action to collect or enforce any performance or the payment of any amount thereunder to which it may be entitled at any time.

 

4.7 Limitation on Certain Changes

The Pledgor shall not, without at least 30 days’ prior written notice to the Security Agent (with a copy to the Administrative Agent), (a) change its location (within the meaning of Section 9-307 of the UCC) or (b) change its corporate name from the name shown on the signature pages hereto.

 

4.8 Further Assurances

The Pledgor agrees that, from time to time upon the written request of the Administrative Agent, and the Pledgor shall, at its expense, promptly execute and deliver such further documents and do such other acts and things as the Administrative Agent may request in order fully to effect the purposes of this Agreement.

 

4.9 Limitation on Transfers

The Pledgor agrees that it will not (a) sell, assign or otherwise dispose of, or grant any option with respect to, any of the Collateral, other than sales, assignments and other dispositions of Collateral expressly permitted under the terms of the Loan Agreement, or (b) create or suffer to exist any Lien upon or with respect to any of the Collateral except for the pledge, security interest, lien and right of set-off created under this Agreement and other Liens (if any) expressly permitted under the Loan Agreement.

 

4.10 As to the Assigned Agreements

 

  (a) Performance, Etc. The Pledgor shall at its expense:

 

  (i) perform and observe all terms and provisions of the Assigned Agreements to be performed or observed by it, maintain the Assigned Agreements in full force and effect, enforce the Assigned Agreements in accordance with the terms thereof and take all such action to such end as may be requested from time to time by the Security Agent (acting solely at the direction of the Administrative Agent, itself acting reasonably); and

 

  (ii) furnish to the Security Agent promptly upon receipt thereof copies of all notices, requests and other documents received by the Pledgor under or pursuant to the Assigned Agreements to which it is a party, and from time to time (A) furnish to the Security Agent such information and reports regarding the Assigned Agreements and such other Collateral as the Security Agent may request (acting solely at the direction of the Administrative Agent, itself acting reasonably) and (B) upon request of the Security Agent (acting solely at the direction of the Administrative Agent) make to each other party to the Assigned Agreements such demands and requests for information and reports or for action as the Pledgor is entitled to make thereunder.

 

Page 6


  (b) No Cancellation, Termination, Amendment, Etc. The Pledgor agrees that it will not, except to the extent otherwise permitted under the Loan Agreement or with the prior written consent of the Security Agent (acting solely at the direction of the Administrative Agent):

 

  (i) cancel or terminate any Assigned Agreement or consent to or accept any cancellation or termination thereof;

 

  (ii) amend, amend and restate, supplement or otherwise modify any such Assigned Agreement or give any consent, waiver or approval thereunder;

 

  (iii) waive any default under or breach of any such Assigned Agreement; or

 

  (iv) take any other action in connection with any such Assigned Agreement that would impair the value of the interests or rights of the Pledgor thereunder or that would impair the interests or rights of the Security Agent.

 

  (c) Payments under Assigned Agreements. The Pledgor agrees, and has effectively so instructed each other party to each Assigned Agreement, that all payments due or to become due under or in connection with such Assigned Agreement will be made directly to the Collection Accounts.

 

5. Remedies

 

5.1 Remedies

At any time that an Event of Default shall have occurred and be continuing:

 

  (a) the Pledgor shall, at the request of the Security Agent (acting solely at the direction of the Administrative Agent), assemble any Collateral not held pursuant to the Account Control Agreement at such place or places, reasonably convenient to both the Security Agent and the Pledgor, designated in such request;

 

  (b) the Security Agent (acting solely at the direction of the Administrative Agent) may make any reasonable compromise or settlement deemed desirable with respect to any of the Collateral and may extend the time of payment, arrange for payment in installments or otherwise modify the terms of any of the Collateral;

 

Page 7


  (c) the Security Agent shall have all of the rights and remedies with respect to the Collateral of a secured party under the Uniform Commercial Code (whether or not the Uniform Commercial Code is in effect in the jurisdiction where the rights and remedies are asserted) and such additional rights and remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted, including the right, to the maximum extent permitted by law, to exercise all voting, consensual and other powers of ownership pertaining to the Collateral as if the Security Agent were the sole and absolute owner thereof (and the Pledgor agrees to take all such actions as may be appropriate to give effect to such right);

 

  (d) the Security Agent (acting solely at the direction of the Administrative Agent) may, in its name or in the name of the Pledgor or otherwise, demand, sue for, collect or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral but shall be under no obligation to do so;

 

  (e) the Security Agent may set-off any amounts payable by the Pledgor with respect to any Secured Obligations against any Collateral in the form of Cash;

 

  (f) subject to the following provisions of this Section 5.1, the Security Agent may (acting solely at the direction of the Administrative Agent), upon 10 days’ prior written notice to the Pledgor of the time and place, with respect to the Collateral or any part thereof which shall then be or shall thereafter come into the possession, custody or control of the Security Agent or any of its agents, sell, assign or otherwise dispose of all or any part of such Collateral, in a commercially reasonable manner, at such place or places as the Security Agent deems best in such manner, and for Cash or for credit or for future delivery (without thereby assuming any credit risk), at public or private sale, without demand of performance or notice of intention to effect any such disposition or of the time or place thereof (except such notice as is required above or by applicable statute and cannot be waived), and the Security Agent or anyone else may be the purchaser, lessee, assignee or recipient of any or all of the Collateral so disposed of at any public sale (or, to the extent permitted by law, at any private sale) and thereafter hold the same absolutely, free from any claim or right of whatsoever kind, including any right or equity of redemption (statutory or otherwise) of the Pledgor, any such demand, notice, claim and right or equity being hereby expressly waived and released to the extent permitted by law. Subject to the following provisions of this Section 5.1, the Security Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the sale may be so adjourned; and

 

  (g) all funds or other property received by the Pledgor under or in connection with any Assigned Agreement or otherwise in respect of the Collateral shall be received in trust for the benefit of the Security Agent (for and on behalf of the Secured Parties), shall be segregated from other funds and property of the Pledgor and shall (i) in the case of funds, be applied as provided in Section 5.2 and (ii) in the case of other property, be forthwith delivered to the Security Agent in the same form as so received (with any necessary indorsement).

 

Page 8


The Pledgor agrees that in any sale of any of the Collateral whenever an Event of Default shall have occurred and be continuing, the Security Agent is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be advised by its counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers, require that such prospective bidders and purchasers have certain qualifications, and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental regulatory authority or official, and the Pledgor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall the Security Agent be liable nor accountable to the Pledgor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.

Section 9-610 of the UCC states that the Secured Parties are able to purchase the Collateral only if the Collateral is sold at a public sale. The Pledgor has been advised that staff of the Securities and Exchange Commission have issued various no action letters describing procedures which, in the view of the such staff, permit a default sale of securities to occur in a manner that is public for purposes of Article 9 of the UCC, yet not public for purposes of Section 4(a)(2) of the Securities Act. The Pledgor has been advised that the UCC permits the Pledgor to agree on the standards for determining whether a Secured Party has complied with its obligations under Article 9 of the UCC. Pursuant to the UCC, the Pledgor hereby specifically agrees (x) that it shall not raise any objection to any Secured Party’s purchase of the Collateral (through bidding on the obligations or otherwise) and (y) that a default sale conducted in conformity with the principles set forth in the no action letters promulgated by such staff (1) shall be considered to be a “public” sale for purposes of the UCC, (2) shall be considered commercially reasonable notwithstanding that such Secured Party has not registered or sought to register the Collateral under the Securities Act, even if the Pledgor agrees to pay all costs of the registration process, and (3) shall be considered to be commercially reasonable notwithstanding that such Secured Party purchases the Collateral at such a sale.

The Security Agent shall incur no liability as a result of the sale of any Debt Obligation, or any part thereof, at any private sale pursuant to this Section 5.1 conducted as provided in the foregoing paragraphs of this Section 5.1. To the extent the sale of a Debt Obligation is conducted as provided in the foregoing paragraphs of this Section 5.1, the Pledgor hereby waives any claims against the Security Agent arising by reason of the fact that the price at which such Debt Obligation may have been sold at any private sale effected as provided above was less than the price which might have been obtained at a public sale or was less than the aggregate amount of the Secured Obligations.

The proceeds of each collection, sale or other disposition under this Section 5.1 shall be applied in accordance with Section 5.2.

 

5.2 Application of Proceeds

The proceeds of any collection, sale or other realization of all or any part of the Collateral pursuant hereto (including any amounts on deposit in, or otherwise standing to the credit of, the Custodial Account) shall be deposited into the Collection Account and applied by the Security Agent in the manner and priority set forth in Section 3.7(g) of the Loan Agreement.

 

Page 9


5.3 Power of Attorney and Security Agent May Perform

 

  (a) The Security Agent is hereby appointed the attorney-in-fact of the Pledgor for the purpose, during any period when the Security Agent is attempting to sell all or any portion of the Debt Obligations pursuant to Section 5.1(f), of taking any action and executing any instruments which the Security Agent may reasonably deem necessary or advisable to accomplish the purposes of this Agreement (including with respect to the exercise of any remedies hereunder against the Pledgor), which appointment as attorney-in-fact is irrevocable and coupled with an interest.

 

  (b) If the Pledgor fails to perform any of its obligations contained herein, the Security Agent may take such action (acting solely at the direction of the Administrative Agent) to protect the security interest granted hereunder in the Collateral or to protect the value thereof, but without any requirement to do so and without notice, itself perform, or cause performance of, such obligation, and the expenses of the Security Agent incurred in connection therewith shall be payable by the Pledgor.

 

6. Custodial Account and Collection Accounts

 

6.1 Collection of Money

Except as otherwise expressly provided herein, while an Event of Default has occurred and is continuing, the Security Agent shall receive and collect, directly and without intervention or assistance of any fiscal agent or other intermediary, all Money and other property payable to or receivable by the Security Agent. All amounts so received or collected shall be deposited in the Collection Accounts.

 

6.2 Custodial Account; Collection Accounts

 

  (a) The Security Agent has specified in the Account Control Agreement that it has established a single, segregated trust account which shall be designated as the Custodial Account (which may include any sub-accounts thereof established by the Security Agent for administrative purposes), a single, segregated trust account which shall be designated as the Interest Collection Account, and another single, segregated trust account which shall be designated as the Principal Collection Account, each of which shall be held in the name of the Security Agent and over which, except as expressly provided herein or in the Account Control Agreement, the Security Agent shall have exclusive control and the sole right of withdrawal. Any reference in this Agreement to the “Custodial Account”, the “Interest Collection Account” or the “Principal Collection Account” shall, unless otherwise expressly provided, include a reference to any sub-account of the Custodial Account, the Interest Collection Account, and the Principal Collection Account, respectively.

To the extent that an obligor does not make the applicable payment directly to the Interest Collection Account or the Principal Collection Account, as the case may be, the Pledgor shall from time to time: (i) deposit into the Interest Collection Account, immediately

 

Page 10


upon its receipt thereof, (A) all Interest Proceeds (including all proceeds received from the disposition of any Collateral by the Pledgor, all Collections with respect to the Collateral and all other funds received by the Pledgor in respect of the Collateral, in each case, that are attributable as Interest Proceeds) and (B) any other amounts that are received by the Pledgor that are not required hereunder to be deposited into the Principal Collection Account; and (ii) deposit into the Principal Collection Account, immediately upon its receipt thereof, (A) all Principal Proceeds (including all proceeds received from the disposition of any Collateral by the Pledgor, all Collections with respect to the Collateral and all other funds received by the Pledgor in respect of the Collateral, in each case, that are attributable as Principal Proceeds), (B) any proceeds of any advance made under Section 2.2 of the Loan Agreement that is not immediately applied to the purchase of a Debt Obligation and (C) any funds contributed in cash to the capital of the Pledgor.

The provisions of this Section 6.2 are subject to the terms of the Account Control Agreement.

 

  (b) By Pledgor Order executed by an Authorized Officer of the Pledgor (which may be in the form of standing instructions), the Pledgor shall at all times direct the Security Agent to invest all funds on deposit in the Accounts as so directed in Eligible Investments in accordance with Sections 3.7(a) and 3.7(b) of the Loan Agreement. Absent such prior written specific investment direction, all such funds shall be held uninvested.

 

  (c) On any date on which interest is due and payable under the Loan Agreement (including any Payment Date), the Pledgor shall by Pledgor Order executed by an Authorized Officer of the Pledgor, delivered to the Security Agent, direct the Security Agent to withdraw funds on deposit in the Interest Collection Account and apply such funds to pay interest as required by, and subject to the conditions of, Sections 3.2, 3.3, 3.4, 3.6 and 3.7 of the Loan Agreement.

 

  (d) On any date on which principal is due and payable under the Loan Agreement (including the Scheduled Maturity Date), the Pledgor shall by Pledgor Order executed by an Authorized Officer of the Pledgor, delivered to the Security Agent, direct the Security Agent to withdraw funds on deposit in the Principal Collection Account and apply such funds to pay principal as required by, and subject to the conditions of, Sections 3.1, 3.6 and 3.7 of the Loan Agreement.

 

  (e) On any date on which any amount (other than principal or interest owing under the Loan Agreement) is due and payable by the Pledgor under the Loan Agreement, the Security Agent shall give the Pledgor written notice of same, and the Pledgor shall by Pledgor Order executed by an Authorized Officer of the Pledgor, delivered to the Security Agent, direct the Security Agent to withdraw funds on deposit in the Collection Accounts and apply such funds to pay such amount as required by, and subject to the conditions of, Sections 3.6, 3.7, 3.8, 3.10, 3.11, 3.13 and 8.1 of the Loan Agreement.

 

  (f) On any date on which any Equity Restricted Payment is to be made by the Pledgor, the Pledgor may by Pledgor Order executed by an Authorized Officer of the Pledgor, delivered to the Security Agent, direct the Security Agent to withdraw funds on deposit in the Collection Accounts and apply such funds to pay such amount, subject to the conditions of Section 5.1(j) of the Loan Agreement.

 

Page 11


  (g) The Security Agent shall at all times be party to the Account Control Agreement which shall provide, inter alia , that the establishment and maintenance of the Accounts shall be governed by the law of the State of New York and that the Security Agent agrees to treat all assets credited to the Accounts as Financial Assets for purposes of the UCC. Any and all assets or securities at any time on deposit in, or otherwise to the credit of, the Accounts shall be held for the benefit of the Security Agent. Except in connection with a liquidation pursuant to Section 5, the only permitted withdrawal of assets or securities (other than Cash) from the Accounts or in, or otherwise to the credit of, the Accounts shall be as directed, upon Pledgor Order, in accordance with the provisions of this Section 6.2, Section 6.3 and Section 6.4.

 

  (h) The Security Agent agrees to give the Pledgor immediate notice if any Account or any assets or securities on deposit therein, or otherwise to the credit thereof, shall become subject to any writ, order, judgment, warrant of attachment, execution or similar process.

 

6.3 Release of Security Interest in Collateral

 

  (a) Upon any sale or other disposition by the Pledgor of the Collateral (or portion thereof) in accordance with the terms of this Agreement and the Loan Agreement, the pledge, security interest, Lien and right of set-off of the Security Agent in such Collateral (or the portion thereof which has been sold or otherwise disposed of), and in all Collections and rights with respect to such Collateral (but not in the proceeds of such sale or other disposition), shall, immediately upon the sale or other disposition of such Collateral (or such portion), and without any further action on the part of the Security Agent, be released except to the extent of the interest, if any, in such Collateral which is then retained by the Pledgor or which thereafter reverts to the Pledgor for any reason; provided that the Security Agent shall execute and deliver to the Pledgor any documentation reasonably requested and prepared by the Pledgor (at the Pledgor’s expense) to effectuate or evidence the foregoing.

 

  (b) If no Event of Default has occurred and is continuing of which the Security Agent shall have written notice, the Security Agent shall, upon receipt of an Pledgor Order executed by an Authorized Officer of the Pledgor or as otherwise provided by the Account Control Agreement, that is delivered to the Security Agent at least two Business Days prior to the date of delivery directed in such Pledgor Order (or such fewer number of days as the Security Agent may agree), deliver or cause to be delivered to or on the order of the Pledgor any Instrument included in the Collateral to the related debtor for ultimate sale or exchange or for presentation, collection, enforcement, renewal or registration of transfer; provided that the Lien of this Agreement on such Instrument remains perfected in accordance with Section 9-312(g) of the UCC and such Instrument shall remain subject to the Lien of this Agreement unless and until released in accordance with the foregoing clause (a).

 

  (c) The Security Agent shall hold for the benefit of the Secured Parties all Certificated Securities and Instruments in physical form at the office of a custodian appointed by it (the Security Agent Custodian ). Initially, such Security Agent Custodian shall be Citibank N.A. with its address at 480 Washington Boulevard, 30 th Floor, Jersey City, New Jersey 07310. Any successor custodian shall be a state or national bank or trust company which is not an Affiliate of the Pledgor and has capital and surplus of at least USD100,000,000.

 

Page 12


6.4 Method of Collateral Transfer

The transfer of Collateral to the Security Agent to be held for the benefit of the Security Agent shall be done in the following manner (with any and all other actions necessary to create in favor of the Security Agent a valid, first-priority security interest in each item of Collateral under applicable law and regulations (including Articles 8 and 9 of the UCC) in effect at the time of such transfer):

 

  (a) each time that the Pledgor shall direct or cause the acquisition of any Collateral constituting a Security Entitlement, the Pledgor shall, if such Collateral has not already been transferred to the Custodial Account and credited thereto, cause the transfer of such Collateral to the Security Agent to be held in and credited to the Custodial Account for the benefit of the Security Agent in accordance with the terms of the Account Control Agreement;

 

  (b) each time that the Pledgor shall direct or cause the acquisition of any Collateral constituting a Certificated Security or Instrument in physical form, the Security Agent shall hold for the benefit of the Secured Parties such Certificated Security or Instrument in accordance with Section 6.3(c); and

 

  (c) the Pledgor shall, within ten days after the date of execution of this Agreement, file, or cause the filing of, all appropriate financing statements covering the Collateral in the proper filing office in the appropriate jurisdictions under applicable law.

 

6.5 Termination

Upon the termination of this Agreement and the payment in full of all Secured Obligations (other than contingent obligations for which no claim has been made) (and so long as the Reinvestment Period shall have terminated), the Security Agent shall forthwith cause to be assigned, transferred and delivered, against receipt but without any recourse, warranty or representation whatsoever, any remaining Collateral and money received in respect thereof, to or on the order of the Pledgor. The Security Agent shall also execute and deliver to the Pledgor upon such termination and payment such UCC termination statements and such other documentation as shall be reasonably requested and prepared by the Pledgor (at the Pledgor’s expense) to effect the termination and release of the pledge, security interest, Lien and right of set-off granted pursuant to Section 2.

 

7. The Security Agent

 

7.1

The Person serving as the Security Agent hereunder shall have the same rights and powers in its capacity as a Secured Party as any other Secured Party and may exercise the same as though it were not the Security Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Pledgor or any Subsidiary or

 

Page 13


  other Affiliate thereof as if it were not the Security Agent hereunder. 7.2 The Security Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Security Agent shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default or Potential Event of Default has occurred and is continuing, (b) the Security Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except as directed by the Administrative Agent in writing, and (c) shall not be liable for the failure to disclose any information relating to the Pledgor or any of its Affiliates that is communicated to or obtained by it or any of its Affiliates in any capacity (except that the foregoing shall not limit any express obligation hereunder). The Security Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders or in the absence of its own bad faith, gross negligence or willful misconduct. The Security Agent shall be deemed not to have knowledge of any Event of Default or Potential Event of Default unless and until written notice thereof is given to the Security Agent by the Administrative Agent, and the Security Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Credit Document, (ii) the contents of any certificate, opinion, notice, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Schedule I of the Loan Agreement or elsewhere herein or therein.

 

7.3

The Security Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, opinion, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Security Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Security Agent may consult with legal counsel (who may be counsel for the Pledgor), independent accountants and other experts selected by it, and shall not be liable (absent gross negligence or willful misconduct) for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Security Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, and shall be protected in acting or refraining from acting on any written notice, request, waiver, consent, resolution, certificate, order, direction or other document or instrument reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. The Security Agent is authorized to act or refrain from acting under this Agreement in accordance with instructions received by it from the Administrative Agent. In performing its duties under this Agreement, the Security Agent may request further instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Security Agent does not receive such instructions within five Business Days after its request, the Security Agent may, but shall be under no duty to, take or refrain from taking a course of action. The Security Agent shall act in accordance with instructions received after such five Business Day period except to the extent that it has already taken, or committed itself to take, action inconsistent with such instructions or acting in accordance with such instructions shall expose the Security Agent to additional costs, obligations or liabilities, in each case, that are not contemplated in this Agreement or any other Support Document. The Security Agent shall not be bound to make any

 

Page 14


  investigation into the facts stated in any resolution, certificate, statement, instrument, opinion, report, consent, order, approval, bond or other document or have any responsibility for filing or recording any financing or continuation statement in any public office at any time or to otherwise perfect or maintain the perfection of any security interest or lien granted by any Person under any credit document.

 

7.4 The Security Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Security Agent with reasonable due care. The Security Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Affiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Affiliates of the Security Agent and any such sub-agent.

 

7.5 Subject to the appointment and acceptance of a successor Security Agent as provided in this paragraph, the Security Agent may resign at any time by notifying the Secured Parties and the Pledgor. Upon any such resignation, the Required Lenders shall have the right, after prior written consent from the Pledgor (not to be unreasonably withheld), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Security Agent gives notice of its resignation, then the retiring Security Agent may, after prior written consent from the Pledgor (not to be unreasonably withheld), appoint a successor Security Agent, which shall be a bank with an office in New York City or an Affiliate of any such bank. Upon the acceptance of its appointment as successor Security Agent, such successor Security Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the resigning Security Agent and the resigning Security Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Pledgor to a successor Security Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Pledgor and such successor. The provisions of this Section 7 shall continue in effect and survive the termination of this Agreement.

 

7.6 Neither the Security Agent nor any of its affiliates, directors, officers, shareholders, agents or employees shall be liable to the Pledgor, except by reason of acts or omissions constituting bad faith, willful misconduct, gross negligence or reckless disregard in the performance of their duties hereunder. The Security Agent shall not be liable for any error of judgment made in good faith by any of its officers. The Security Agent shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized hereby. The Security Agent shall not have any liability for any loss arising from any cause beyond its control, including but not limited to, the act, failure or neglect of any agent selected with reasonable due care by the Security Agent, except with respect to Affiliates of the Security Agent, or the acts or edicts of any government or governmental agency or other group or entity exercising governmental powers.

 

7.7 The Security Agent shall not be responsible or liable for any loss occasioned by delay in the actual receipt of any certificates, opinions, notices, instruments, notices, schedules, agreements or documents nor for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including without limitation, acts of God, earthquakes, fires, floods, wars, civil or military disturbances, sabotage, epidemics, riots, interruptions, loss or malfunctions of external utilities or external communications service, acts or civil or military authority or other governmental actions.

 

Page 15


7.8 It is the intention of the parties hereto that the Security Agent shall not be required to use, advance or risk its own funds or otherwise incur financial liability in the performance of any of its duties or the exercise of any of its rights and powers as Security Agent hereunder (except for the expenses of the Security Agent in performing its duties hereunder). Anything in this Agreement notwithstanding, in no event shall the Security Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if it has been advised of such loss or damage and regardless of the form of action.

 

7.9 The Security Agent shall not have any responsibility or liability to evaluate the financial condition of any Person or to review any of the certificates, opinions, instruments, notices, schedules, agreements and documents delivered to it or to enforce any Person’s obligation to deliver them.

 

7.10 The Security Agent shall not be responsible to any Person for any recitals, statements, information, representations or warranties regarding the Pledgor or the Collateral or in any document, certificate or other writing delivered in connection herewith or therewith or for the execution, effectiveness, genuineness, validity, enforceability, perfection, collectibility, priority or sufficiency of thereof or any such other document or the financial condition of any Person or be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions related to any Person or the existence or possible existence of any Event of Default or Potential Event of Default. The Security Agent shall not have any obligation whatsoever to any Person to assure that any Collateral exists or is owned by any Person or is cared for, protected or insured or that any liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise or to continue exercising at all or in any manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available with respect thereto.

 

8. Miscellaneous

 

8.1 Notices

All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail (airmail, if overseas) or the equivalent (return receipt requested) or sent by email transmission (of a pdf or similar format file), as follows:

 

(a) if to the Pledgor, to it at 601 Lexington Avenue, 26 th Floor, New York, NY 10022, Attention: Rocco Del Guercio; Telephone No. 212-257-5193; Email: RDelGuercio@CMFN-INC.COM; and

 

(b) if to the Security Agent, to it at 388 Greenwich Street, 14th Floor, New York, New York 10013, Attention: Agency & Trust - CM Finance.

Either party hereto may change its address for notices and other communications hereunder by notice to the other party hereto.

 

Page 16


The Security Agent and the Security Agent Custodian agree to accept and act upon instructions or directions pursuant to this Agreement or any documents executed in connection herewith sent by unsecured email or other similar unsecured electronic methods; provided , that any person providing such instructions or directions (if such person is not listed in Exhibit A (Authorized Representatives of Security Agent) to the Account Control Agreement) shall provide to the Security Agent and the Security Agent Custodian an incumbency certificate listing persons designated to provide such instructions or directions (including the email addresses of such persons), which incumbency certificate shall be amended whenever a person is added or deleted from the listing. If such person elects to give the Security Agent and the Security Agent Custodian email (of .pdf or similar files) (or instructions by a similar electronic method) and the Security Agent and the Security Agent Custodian in its discretion elects to act upon such instructions, their reasonable understanding of such instructions shall be deemed controlling. The Security Agent and the Security Agent Custodian shall not, in the absence of any bad faith, gross negligence or willful misconduct on the part of the Security Agent or the Security Agent Custodian, as the case may be, be liable for any losses, costs or expenses arising directly or indirectly from their reliance upon and compliance with such instructions notwithstanding such instructions conflicting with or being inconsistent with a subsequent written instruction. Any person providing such instructions or directions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Security Agent and the Security Agent Custodian, including without limitation the risk of the Security Agent and the Security Agent Custodian acting on unauthorized instructions, and the risk of interception and misuse by third parties.

 

8.2 No Waiver

No failure on the part of the Security Agent to exercise, and no course of dealing with respect to, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by the Security Agent of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies herein are cumulative and are not exclusive of any remedies provided by law.

 

8.3 Amendments, Etc.

No amendment, modification or waiver in respect of this Agreement will be effective unless in writing (including a writing evidenced by a facsimile transmission) and executed by each of the Pledgor, and the Security Agent (acting at the direction of the Required Lenders); provided that, without the prior written consent of each Lender, the Security Agent shall not (except as provided herein) release any Collateral or otherwise terminate any Lien hereunder, agree to additional obligations being secured by any Collateral security, alter the relative priorities of the Secured Obligations entitled to the benefits of the Lien created hereunder, except that no such consent shall be required, and the Security Agent is hereby authorized, to release any Lien covering property that is the subject of a disposition of property permitted under the Loan Agreement (as evidenced by an officer’s certificate of the Pledgor).

The terms of this Agreement may be waived, altered or amended only by an instrument in writing duly executed by the Pledgor, the Security Agent and the Security Agent Custodian.

 

Page 17


8.4 Successors and Assigns

This Agreement shall be binding upon and inure to the benefit of the respective successors and permitted assigns of the Pledgor and the Security Agent. Neither party shall assign or transfer any of its rights or obligations hereunder without the prior written consent of the other party, and any such purported assignment without such consent shall be void.

 

8.5 Counterparts

This Agreement (and each amendment, modification and waiver in respect of it) may be executed and delivered in counterparts (including by email transmission), each of which will be deemed an original.

 

8.6 Governing Law

This Agreement shall be construed in accordance with, and this Agreement and all matters arising out of this Agreement and the transactions contemplated hereby (whether in contract, tort or otherwise) shall be governed by, the law of the State of New York.

 

8.7 Jurisdiction

With respect to any suit, action or proceedings relating to this Agreement or any matter between the parties arising under or in connection with this Agreement ( Proceedings ), each party irrevocably: (a) submits to the non-exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City; and (b) waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings, that such court does not have any jurisdiction over such party. Nothing in this Agreement precludes either party from bringing Proceedings in any other jurisdiction, nor will the bringing of Proceedings in any one or more jurisdictions preclude the bringing of Proceedings in any other jurisdiction.

 

8.8 Waiver of Jury Trial

THE PLEDGOR AND THE SECURITY AGENT HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

8.9 Captions

The captions and section headings appearing herein are included solely for convenience of reference and are not intended to affect the interpretation of any provision of this Agreement.

 

Page 18


8.10 Agents and Attorneys-in-Fact

The Security Agent may employ agents and attorneys-in-fact in connection herewith and shall not be responsible for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith.

 

8.11 Severability

If any term, provision, covenant or condition of this Agreement, or the application thereof to either party or any circumstance, is held to be unenforceable, invalid or illegal (in whole or in part) for any reason (in any relevant jurisdiction), the remaining terms, provisions, covenants and conditions of this Agreement, modified by the deletion of the unenforceable, invalid or illegal portion (in any relevant jurisdiction), will continue in full force and effect, and such unenforceability, invalidity, or illegality will not otherwise affect the enforceability, validity or legality of the remaining terms, provisions, covenants and conditions of this Agreement so long as this Agreement as so modified continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the deletion of such portion of this Agreement will not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited or unenforceable provision with a valid provision, the economic effect of which comes as close as possible to that of the prohibited or unenforceable provision.

 

8.12 Third Party Beneficiaries

Nothing in this Agreement, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any benefit or any legal or equitable right, remedy or claim under this Agreement, except Section 5.2 hereof, which shall benefit the Secured Parties.

 

Page 19


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

 

CM FINANCE SPV LLC
By:  

 

  Name:
  Title:

 

Signature Page to Security Agreement


CITIBANK, N.A.
as Security Agent
By:  

 

  Name:
  Title:

Signature Page to Security Agreement


CONTENTS

 

SECTION    PAGE  

1.

    

Definitions and Interpretation

     1   

2.

    

Grant of Security Interest

     3   

3.

    

Representations and Warranties

     3   
 

3.1

  

Ownership of Collateral

     3   
 

3.2

  

Security Interest

     4   
 

3.3

  

Organization; Location

     4   
 

3.4

  

Assigned Agreements

     4   

4.

    

Covenants

     4   
 

4.1

  

Title Covenants

     4   
 

4.2

  

Security Agent May Perform

     4   
 

4.3

  

Perfection, Etc.

     5   
 

4.4

  

No Other Financing Statements

     5   
 

4.5

  

Prior Parties; Care of Collateral

     5   
 

4.6

  

Continuing Liability of the Pledgor

     6   
 

4.7

  

Limitation on Certain Changes

     6   
 

4.8

  

Further Assurances

     6   
 

4.9

  

Limitation on Transfers

     6   
 

4.10

  

As to the Assigned Agreements

     6   

5.

    

Remedies

     7   
 

5.1

  

Remedies

     7   
 

5.2

  

Application of Proceeds

     9   
 

5.3

  

Power of Attorney and Security Agent May Perform

     10   

6.

    

Custodial Account and Collection Accounts

     10   
 

6.1

  

Collection of Money

     10   
 

6.2

  

Custodial Account; Collection Accounts

     10   
 

6.3

  

Release of Security Interest in Collateral

     12   
 

6.4

  

Method of Collateral Transfer

     13   
 

6.5

  

Termination

     13   

7.

    

The Security Agent

     13   

 

Page I


8.

    

Miscellaneous

     16   
 

8.1

  

Notices

     16   
 

8.2

  

No Waiver

     17   
 

8.3

  

Amendments, Etc.

     17   
 

8.4

  

Successors and Assigns

     18   
 

8.5

  

Counterparts

     18   
 

8.6

  

Governing Law

     18   
 

8.7

  

Jurisdiction

     18   
 

8.8

  

Waiver of Jury Trial

     18   
 

8.9

  

Captions

     18   
 

8.10

  

Agents and Attorneys-in-Fact

     19   
 

8.11

  

Severability

     19   
 

8.12

  

Third Party Beneficiaries

     19   

 

Page II


Dated as of November 9, 2016

CM FINANCE SPV LLC,

a limited liability company formed under the laws of the State of Delaware

as Pledgor

and

CITIBANK, N.A.,

a national banking association

as Security Agent

 

 

 

SECURITY AGREEMENT

 

 

 

 

LOGO    Freshfields Bruckhaus Deringer US LLP

Exhibit 31.1

I, Michael C. Mauer, certify that:

 

  1. I have reviewed this Quarterly Report on Form 10-Q of CM Finance Inc;

 

  2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

  3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

  4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

  (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  (c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation;

 

  (d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

  5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: November 9, 2016

 

/s/ Michael C. Mauer

Michael C. Mauer
Chief Executive Officer

Exhibit 31.2

I, Rocco DelGuercio, certify that:

 

  1. I have reviewed this Quarterly Report on Form 10-Q of CM Finance Inc;

 

  2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

  3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

  4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

  (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  (c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation;

 

  (d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

  5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: November 9, 2016

 

/s/ Rocco DelGuercio

Rocco DelGuercio
Chief Financial Officer

Exhibit 32.1

Certification of Chief Executive Officer Pursuant to

Section 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. 1350)

In connection with this Quarterly report on Form 10-Q (the “Report”) of CM Finance Inc (the “Registrant”), as filed with the Securities and Exchange Commission on the date hereof, I, Michael C. Mauer, the Chief Executive Officer of the Registrant, hereby certify, to the best of my knowledge, that:

 

  (1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and

 

  (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Registrant.

 

/s/ Michael C. Mauer

Name: Michael C. Mauer
Date: November 9, 2016

Exhibit 32.2

Certification of Chief Financial Officer Pursuant to

Section 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. 1350)

In connection with this Quarterly report on Form 10-Q (the “Report”) of CM Finance Inc (the “Registrant”), as filed with the Securities and Exchange Commission on the date hereof, I, Rocco DelGuercio, the Chief Financial Officer of the Registrant, hereby certify, to the best of my knowledge, that:

 

  (1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and

 

  (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Registrant.

 

/s/ Rocco DelGuercio

Name: Rocco DelGuercio
Date: November 9, 2016